THE PEOPLE v. KENYON MARCEL MUHAMMAD (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O NFACTS

Appellant, Kenyon Marcel Muhammad, pled no contest to domestic violence with a prior conviction (count 2/Pen.Code, § 273.5, subd. (e)(1)),¹ false imprisonment (count 9/ § 236), and misdemeanor sexual battery (count 10/ § 243.4, subd. (e)(1)).   Muhammad also admitted a great bodily injury enhancement (§ 12022.7, subd. (e)) in count 2 and a prior prison term enhancement (§ 667.5, subd. (b)).

On October 29, 2010, the court sentenced appellant to an aggregate term of 11 years 8 months.

On appeal, appellant contends the court abused its discretion when it denied his motion to withdraw his plea.   We will affirm.

On November 6, 2009, at approximately 12:00 a.m., Muhammad viciously beat his girlfriend at her residence in front of her children.   Muhammad also sexually assaulted the victim and, at one point, brandished a rifle.   The assault left the victim with cuts on the right side of her eyebrow and on her upper lip, scratches below her neck, swollen eyes, and pain on her side.

On December 10, 2009, the district attorney filed an information charging Muhammad with assault (count 1/ § 245, subd. (a)(1)), domestic violence with a prior conviction (count 2), forcible rape (count 3/ § 261, subd. (a)(2)), sexual penetration by force (count 4/ § 289, subd. (a)(1)), making criminal threats (count 5/ § 422), assault with a firearm (count 6/ § 245, subd. (a)(2)), possession of a firearm by a felon (count 7/ § 12021, subd. (a)(1)), and forcible oral copulation (count 8/ § 288a, subd. (c)(2)).   The information also alleged a prior prison term enhancement, a great bodily injury enhancement in counts 1 and 2, and a personal use of a firearm enhancement in counts 3, 4, and 5.

On May 21, 2010, the district attorney amended the information to include a count 9 charging Muhammad with felony false imprisonment and a count 10 charging Muhammad with misdemeanor sexual battery.   Muhammad then pled no contest to counts 2, 9, and 10, and admitted the great bodily injury enhancement in count 2 and the prior prison term enhancement in exchange for the dismissal of the remaining counts and enhancements and a lid of 11 years 8 months.

On September 27, 2010, Muhammad filed a motion to withdraw plea asserting, in pertinent part, that he “was not properly advised as to the direct consequenc [e]s of his plea, in that he was acting under the false belief that his plea was to a ‘wobbler’ and that his plea was identical to that of his codefendant, Mr. Beck, both of which were not true.”

On October 26, 2010, Muhammad filed a second motion to withdraw plea which, in pertinent part, alleged that Muhammad “was not properly advised as to the direct consequences of his plea, in that he was acting under the false belief that his plea was entitling him to receive half time credits.”   Neither motion had any declarations or other documentary evidence attached to it.

On October 29, 2010, at a hearing on Muhammad's motion, defense counsel did not present any evidence.   Instead, he argued that the court should grant the motion because Muhammad mistakenly believed he would receive one-for-one conduct credit, rather than the 15 percent conduct credit he was limited to by his admission of the great bodily injury enhancement in count 2. Defense counsel also argued that Muhammad believed the victim was pressured into testifying against him.   The court denied the motion and sentenced Muhammad to the aggregate term of 11 years 8 months:  the upper term of five years on count 2, a five-year great bodily injury enhancement in that count, a consecutive eight-month term on count 9, credit for time served on count 10, and a one-year prior prison term enhancement.

DISCUSSION

Muhammad's admission of a great bodily injury enhancement in count 2 converted that offense into a violent felony (§ 667.5, subd. (c)(8)), which limited his conduct credit to no more than 15 percent of the time he actually served (§ 2933.1).   Muhammad contends he was not aware that his admission of this enhancement limited him to earning 15 percent conduct credit because he was not properly advised by his defense counsel.   As an “alternative or supplementary analysis,” he contends he was denied the effective assistance of counsel by defense counsel's failure to advise him that his admission of the great bodily injury enhancement would limit his conduct credit to 15 percent.   We will reject these contentions.

“When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result.  [Citations.]  On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion.  [Citations.]  An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.  [Citation.]

“Section 1018 requires a showing of good cause to allow withdrawal of a plea.  [Citation.]  In relevant part, section 1018 provides, ‘On application of the defendant at any time before judgment ․ the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.’

“ ‘ “While ․ section [1018] is to be liberally construed and a plea of guilty may be withdrawn for mistake, ignorance, or inadvertence or any other factor overreaching defendant's free and clear judgment, the facts of such grounds must be established by clear and convincing evidence.   [Citations.]” ’  [Citation.]   The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.  [Citation.]”  (People v. Shaw (1998) 64 Cal.App.4th 492, 495–496.)

Here, Muhammad alleged, in his second motion to withdraw plea, that he was not properly advised “in that” he erroneously believed he would receive one-for-one credits.   The moving papers, however, did not contain any declarations or other evidence in support of the motion.   Further, defense counsel did not present any evidence in support of the motion at the hearing on the motion.   Therefore, in light of Muhammad's failure to provide any evidentiary support for his motion, we conclude he did not meet his burden of showing that his free and clear judgment was overcome by any of the factors enumerated in section 1018.

Moreover, Muhammad did not claim in the trial court that his defense counsel was ineffective because he failed to advise Muhammad that his admission of the great bodily injury enhancement would limit him to earning only 15 percent conduct credit.   Thus, he forfeited this issue on appeal.  (People v. Scott (2002) 98 Cal.App.4th 514, 516, fn. 3 [“generally litigants may not assert a new theory on appeal”].)

Nevertheless, even if this argument were properly before us, we would reject it.   Appellate counsel states in Muhammad's appellate briefs that Muhammad's trial counsel admitted in the moving papers that he failed to advise Muhammad that his admission of the great bodily injury enhancement rendered him ineligible to receive one-for-one conduct credit.   Our review of the record, however, does not disclose any such admission.   Rather, what defense counsel actually stated in the moving papers was that “․ Muhammad was not properly advised as to the direct consequences of his plea, in that he was acting under the false belief that his plea was entitling him to receive half time credits.”   This statement does not directly attribute Muhammad's alleged erroneous belief that he would receive one-for-one credit to the absence of a proper advisement of the consequences of his plea by defense counsel or anyone else.   But even if it could be interpreted in this manner, the statement clearly allows for the possibility that Muhammad was not properly advised of the consequences of his plea by someone other than defense counsel including the court, other inmates, friends or family.

Nor does any other evidence in the record support Muhammad's belated ineffective assistance of counsel claim.   In order to establish that he was denied the effective assistance of counsel in entering his plea, Muhammad had to show:  1) that “counsel's representation fell below an objective standard of reasonableness under prevailing professional norms” (People v. Kelly (1992) 1 Cal.4th 495, 519–520);  and, 2) in the context of a motion to withdraw plea, that there was “a reasonable probability that, but for counsel's incompetence, [he] would not have pleaded guilty and would have insisted on proceeding to trial” (In re Alvernaz (1992) 2 Cal.4th 924, 934).

In addition to the absence of any evidence of a misadvisement or a failure to advise by defense counsel, Muhammad did not allege or attempt to prove in the trial court that he would have insisted on going to trial if he had realized that his plea made him ineligible for one-for-one credit.   Accordingly, for all these reasons we conclude that the court did not abuse its discretion when it denied Muhammad's motion to withdraw his plea.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Penal Code, unless otherwise indicated..  FN1. All further statutory references are to the Penal Code, unless otherwise indicated.

THE COURT 1 FN1. Before Dawson, Acting P.J., Detjen, J., and Franson, J.