Filed 1/27/15 P. v. Streeter CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
DONALD STREETER,
Defendant and Appellant. B251128
(Los Angeles County Super. Ct. No. BA386212)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Monica Bachner, Judge. Affirmed. Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Elaine F. Tumonis, Deputy A ttorneys General, for Plaintiff and Respondent.2 Donald Streeter was charged with murder (Pen. Code, § 187, subd. (a); all further statutory citations are to this code) with enhancements for personal use of a handgun (§ 12022.53, subds. (b), (c), & (d)) and for a crime committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C )). He moved to suppress admissions he had made during police interrogation. Afte r that motion was denied, he accepted the prosecution’s offer in a plea bargain. Pu rsuant to the plea agreement he pleaded no contest to voluntary manslaughter (§ 1 92, subd. (a)), with the same enhancement allegations. Shortly after entering his plea, he discharged his retain ed attorney, asked for the appointment of new counsel, and moved to withdraw the plea. Following briefing and a hearing at which testimony was taken, and argument presented, the trial court denied the motion. Defendant appeals from his conviction, arguing the trial court erred in denying his motion to withdraw the plea. We find no error and affirm the conviction.

FACTUAL AND PROC EDURAL SUMMARY Understandably, since there was a disposition without trial in this case, no issue is raised with respect to suffici ency of the eviden ce. We therefore present the following brief summary of the underlying evidence, taken from the transcript of the felony preliminary hearing and defendant’s admissions in interrogation. In the late hours of November 13, 2010, or the early morning of th e next day, there was a shooting at or near
the intersection of 46th Street and Central Avenue in Los Ange les. The apparent targets were members of defendant’s gang, the 4-Deuc e. Later that evening defendant was asked to participate in a retaliatory attack on a location where members of the gang responsible for the shooting were thought to be. They were in the area of the Bottoms Up Club on
50th Street and Central Avenue. He was handed a gun and to ld to shoot persons at the location, and was threatened w ith expulsion from his gang if he refused. Defendant was a passenger in one of two cars that drove to the location and, on a rriving, fired several shots through an open window on the passenger side of the vehi cle. In doing so, he shot and killed Stephanie Th ompson, a young woma n who was standing at the location. Later, in interrogation, he expressed regret fo r the killing and said he had been forced to3 do it. Defendant was 18 years old at the time of these crimes. The interrogation was conducted by two de tectives who had asked defendant to accompany them to the police sta tion; he agreed to do so. At an encounter about a week before, defendant had told officers that he knew about the shooti ng, named two persons (not himself) as being responsible or having information about it, and said he would try to get more information. At the police station the officers read defendant a Miranda admonition about his right to remain silent and to have an attorney present during questioning. ( Miranda v. Arizona (1966) 384 U.S. 436.) Defenda nt waived those rights, both orally and by signing a waiver form, a nd agreed to discuss the matter with the officers. He initially pointed to others as responsible for the shoo ting, but eventually
confessed that he was the shooter who killed Ms. Thompson. At tr ial, defendant moved to suppress evidence of the statements he made to the officers. The basis of his motion was that he suffered from cognitive limitations that prevented him from understanding the rights he was giving up. Much of defend ant’s opening brief is devoted to that issue,
but the trial court’s denial of his motion to s uppress is not raised as a ground of appeal. Nor could it be in light of th e negotiated disposition of the case, even though a certificate of probable cause was granted by th e trial court. (§ 1237.5; see People v. Johnson (2009) 47 Cal.4th 668, 679.) The onl y pertinence of the suppre ssion proceedings is that evidence of defendant’s cognitiv e limitations, developed at that phase of the case, bears on his motion to withdraw the no contest plea. We address this in our discussion of that
issue. The parties had been discussing a possible disposition of the case for some time before reaching agreement. Jury selection wa s still in progress when , on April 11, 2013, the court stated its understanding that th e parties had agreed on a disposition. Immediately after that announcement, defendant interjected, “Can I sign it today? I don’t
want to come back to court no more.” His attorney explained that defendant “wants to have this over today, Your Honor. In othe r words, he wants to be sentenced today as well.” The court then explained the proced ure it would follow in taking the plea. The prosecutor set out the People’s offer: defendant would plead guilty to voluntary4 manslaughter, under a new count to be added as Count 2, and would be sentenced to state prison for 11 years for that cr ime. He also would admit th e special allegation of firearm use under section 12022.5 subdivision (a), fo r which an additional term of four years would be added, and would admit the gang allegation under section 186.22 subdivision (b)(1)(C), which would add 10 years to the sentence, for a total of 25 years, less credit for time already served. The People would dismi ss the murder charge and other allegations then pending. The court asked defendant if th is is what he unders tood the agreement to be, and he replied “Yes, ma’am,” indicating that it was. The in formation was then amended in accordance with the prosecutor’s statement. The court observed that there
had been some discussion abou t the facility where defendant would be placed in the prison system. The court stated that it could not order a particular placement, but would recommend that prison authorities evaluate defendant for incarceration at a location
where he would receive treatment if nece ssary. Defendant acknowledged that he
understood. The court proceeded w ith the taking of the waivers a nd plea. In response to the court’s question whether he had discussed the charges with his attorn ey, defendant asked, “What do you mean?” The court repeated and explained its question, and defendant then
answered in the affirmative. The prosecutor asked defe ndant if he understood the sentence he could receive was in state prison, th at this was only because of his plea to the lesser crime (voluntary manslaughter), and th at if he were convicted of first degree murder with the other allegations he would be exposed to a sentence of 50 years to life. Defendant said he understood this. The pr osecutor then reviewed the specific rights defendant was giving up and de fendant said that he understood. When the prosecutor reached the right to confront witnesses and present defenses and asked defendant if he understood that right, defendant responded, “What does she got? I don’t understand.” The prosecutor restated these rights and defendant then said he understood, and waived them. He also acknowledged understanding of and waived the remaining rights. The
court then reached the fees and assessments it was require d to impose, and defendant acknowledged that he understo od. Defendant acknowledged that no one had threatened5 him or anyone near to him in order to make him enter the plea, and that he was entering it
of his own free will and that is what he want ed to do. There was a pause while defendant discussed what “consequences” of his plea mean t, then he stated that he understood. He
also said he did not need more time with respect to the plea . He then entered the plea—
no contest—and admitted the firear m use and gang allegations. There apparently had been a request that members of the decedent’s family be present for the sentencing, and the court stated that it would handle that in the afternoon. The court excused the jurors. At the afternoon session, after the court asked defense counsel for her calculation
of defendant’s credit entitlement and asked if there was anything el se, defendant stated, “Yes, Judge. I want to take my plea back, ma’a m. I need to let the people know. I need more time to think. And my lawyer knows about this case.” The prosecutor was surprised, and the court stated that it had no t heard a legal basis to withdraw the plea. The prosecutor indicated that he would prepare a brief for th e court that day, which he
did. The next day, when the case was called, de fense counsel stated that defendant had
asked that she be removed as his a ttorney. Asked whether this was a Marsden motion ( People v. Marsden (1970) 2 Cal.3d 118), she explained that it was not, and that defendant was “firing me.” Defendant ac knowledged this was “correct.” The court granted his motion to relieve retained counse l and asked the indigent defense panel to select an attorney. At the next hearing a member of that panel, Jack Fuller, was appointed to take over defendant’s repres entation, and the matter was continued for sentencing. Defendant’s formal motion to withdraw the pl ea was filed on July 2, 2013. It was based on two grounds: “That de fendant believed that he would have a right to appeal the denial of his motion to suppress evidence of his statement [to police] and he has now
learned that such an order ca nnot be appealed” and ineffe ctive representation by counsel
“in that the defendant was not advised that he would not have a right to appeal the denial of his motion to suppress his statement.” The motion was supported by defendant’s6 declaration that when he entered the plea he was “given the impression that [he] would be permitted to appeal the denial of [his] moti on to suppress [his] stat ement” and that he “later learned that this is a non-appealable or der and that [he] will have no recourse to challenge the court’s ruling” on the motion. Defendant also stated that if he had been advised that he could not appeal the orde r denying his motion he would have demanded his right to jury trial, and th at he now wishes to withdraw the plea and reinstate his not guilty plea to the mu rder charge. The prosecutor objected to defendant’s de claration as evidence of the factual assertions it made, and argued that if defenda nt wishes to present evidence on what he thought and why he acted in a particular way, he would have to tes tify and be subject to cross-examination. His new counsel agreed that defendant would testify “specifically and only to the issue of whether or not he was advised that he would or would not be able to have appellate rights as to th e issue of the denial of the moti on to keep his statement.” In his ensuing testimony defendant’s atto rney asked whether defendant was told by his previous attorney that th e statements made to police at the time of his arrest would be heard by the jury. He respon ded that “she [the attorney] ne ver told me none of that.”
Asked whether he decided to plead guilty because the judge had ruled the statements would be heard by the jury, he answered in th e affirmative. He was next asked whether
he understood he “would be able to appeal the judge’s ruling, that is to have another court decide whether or not the judge was right in ruling that your statements could come in?” He answered, “No. No.” Defense counsel tried again, asking whether, when he pled guilty, defendant hoped “to be ab le to go to another court and ask them to say that your
statements would not be able to go in front of a jury?” He responded, “No, I didn’t
understand none of that.” Counsel made se veral further attempts at the question. Defendant said he was just told to say yes, and he “didn't know what I was saying yes
to.” On cross-examination by the prosecutor, defendant was asked whether he knew an offer had been made when he accepted it. He responded, “I said no. I said no, and she came out here and told my family tell me to take this deal. I told the lady in the back, no,7 let’s continue, go to trial, and some type of way I was told I was going to get life. So I didn’t want to get life so I said yeah. Yeah, I remember taking 25, yeah.” And again: “I was told I was going to lose the trial.” Defenda nt said he did not know what “was really going on. I was just told to say yes, yes, yes. I didn’t know wh at the question really meant.” Asked whether he was threatened, de fendant replied, “Man, I was under duress. I didn’t know . . . I was forced to take it, ye s.” By whom? “That lawyer kept saying yes, looking at me saying yes, take it.” Asked whether he was saying the lawyer threatened him, defendant answered “That’s not how it came out of my mouth, sir . . . You can’t force me to say something. I just told you I can’t really sa y yes or no.” Counsel then asked whether defendant’s lawyer promised anything other than what was discussed on the record in court, and he replied, “No, she didn’t tell me none of that. That’s what she didn’t do.” He said his lawy er threatened him. Asked how, defendant answered that she said “yes, take it. Take it. Say yes. Say yes. ” She also advised his family to tell him to take the plea bargain, which they did. Counsel then asked defendant whether, when he pled, he believed he had the right to appeal. Defendant interrupt ed the question with “no,” then said he did not know what an appeal is; no one ever explained that the pu rpose of an appeal is to have a higher court consider things about the case. As to his si gnature on the declarati on filed in support of the motion, he said “I never signed none of that” although it was his signature. Asked the central question whether, when he pled he believe d he could appeal anything about his case, defe ndant answered “no, no.” As ked again whether he believed he could challenge the trial court’s ruling in a higher court, defendant answered “No.” It was only “later on after the plea bargain I wa s, but I was never—I was never told that before. Not, till later on, yeah. Later on I was; before, no.” He explained that he never wanted the deal, and he “di dn’t know what was going on,” he was afraid and nervous,
and “didn’t know what to do.” In ruling on the motion the tria l court noted that there ha d been no discussion of a possible right to appeal during the taking of the plea; in fact the only matter discussed aside from the rights being waived and the actual waivers, was about placement of8 defendant in the prison system, as to which the trial court ha d pointed out that it could not direct the prison authorities to make a partic ular placement, but that it would make a recommendation. During the plea colloquy defe ndant was given additi onal time to talk to counsel about the consequences of the plea and anything else, and he said he had no more questions for his attorney, the pr osecutor, or the court. And at the present hearing he said he did not believe he could ap peal denial of the suppression motion—he did not know he had such a right, which is understandable since he did not. Defendant’s testimony that he was told to say “yes” to everyt hing was not credible, since th e transcript reflects that he did not say “yes” to everything; he answered “yes” to some things and said “no” to others. Summarizing, the court said the presen t motion appeared to be a kind of buyer’s
remorse. It denied the motion.
Defendant was later sentenced in accordan ce with the plea bargain. He filed a timely notice of appeal.

DISCUSSION The decision whether to grant or deny a defendant’s motion to withdraw a plea
rests in the sound discretion of the trial cour t, and that court’s decision is final absent abuse of discretion. ( People v. Fairbank (1997) 16 Cal.4th 1223 , 1254.) Indeed, the defendant’s burden on such a motion is to pr ove that an abuse occurred by clear and convincing evidence. ( People v. Nance (1991) 1 Cal.App.4th 1453, 1456 and cases cited.) And the usual principle for appellate review of factual findings of a trial court applies here as well: the appellate court must accept the trial court’s factual findings if they are supported by substan tial evidence. “[A] reviewin g court must adopt the trial court’s factual findings if substan tial evidence supports them.” ( People v. Fairbank
, supra , at p. 1254.) In this case defendant argues that he wa s misled into believi ng that he could appeal the adverse finding on his evidence suppression motion even though he subsequently pled no contest. He argues th at his diminished ment al abilities brought this case within “exceptional circumst ances” which may justify withdrawal of the plea. He9 cites People v. Osmon (1961) 195 Cal.App.2d 151, 154 , for that proposition. Osman concerned waiver of the right to jury trial, and no case has been cited or found that applies such a broad proposition to a guilty plea , or its equivalent—a plea of no contest.
But even if there were such an exception, this case would not fit within it. Defendant argued he was misl ed into believing that his right to appeal would survive the guilty plea, but virt ually no evidence was presente d to support that claim. Although asked repeatedly during the evidentiary hearing, he never testified that his trial counsel, or anyone else, had to ld him that he could appeal the suppression ruling if he later pled guilty in a plea bargain. On appeal, his attorney points to evidence at the suppression h earing with respect to defendant’s impaired ability to understand the Miranda waiver. Each side presented an expert on this issue. Dr. Andrea Be rnhard, a clinical psychologist, presented a
declaration and testified for defendant. Ba sed on her interview of defendant and the medical records, she did “not believe that [defendant] adequately understood Miranda [rights] and the consequences of waiving them.” The prosecution expert, Dr. Ronald Markma n, a forensic psychiatrist, disagreed.
He found no eviden ce of thought disorder. He explained, “You don’t have to be a rocket
scientist to understand Miranda warnings. You have to have a basic understanding of the import of what they mean and how you can rela te to them and respon d to those warnings, whether you choose to respond to questions or not. And in my opinion, he was capable of doing it when I examined him.” Dr. Ma rkman rendered a preliminary diagnosis of defendant as dull, with normal intellectual f unction. Defendant understood that he could choose not to answer questi ons and not to cooperate in questioning. Dr. Markman was aware that defendant previously had been found “mildly retard ed” by the regional center, but “that was their diagnosis.” Dr. Ma rkman did not indicate agreement. After hearing the evidence, the trial cour t found Dr. Markman “persuasive in his opinion based on his review, that the defe ndant did, at the time of the interview,
understand the Miranda and intelligently and volunt arily chose to waive his Miranda rights . . . I do find that the People have prov en by a preponderance of the evidence that10 the waiver was knowing, in telligent and voluntary.” In summary, not only was there a failure of clear and convincing evidence that the
trial court abused its discreti on in denying defendant’s motion to withdraw his plea, there
is almost no credible evidence at all to justify a different result than the one reached by the court. As the trial court observed, defend ant presented a case of buyer’s remorse. It may be true that he was uneasy with the barg ain he had made and it is natural that he
would be nervous and ill at ease in the s ituation in which he found himself. But “[a]lthough ““[t]he criminal process . . . is replete with situations requiring the “making of difficult judgments” as to which course to follow . . . [and] . . . a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that toke n always forbid requiring him to choose.”’’ [Citation.]” ( People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 368.)

DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

COLLINS, J.