Filed 12/18/15 P. v. Alvarez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041836
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS141900A)

         v.

JOSE REYES ALVAREZ,

         Defendant and Appellant.


         Defendant Jose Reyes Alvarez pleaded nolo contendere to two felony counts of
unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c))1 and one
misdemeanor count of assault by means likely to produce great bodily injury (§ 245,
subd. (a)(4)). Before defendant entered his plea, the trial court indicated that it was
inclined to exercise its discretion to reduce the two felony charges under section 261.5,
subdivision (c) to misdemeanors if the victim’s family had no objections. At the
sentencing hearing, the court declined to reduce the felonies to misdemeanors, denied
defendant’s request for a continuance to prepare a motion to withdraw his plea, and
denied his request to withdraw his plea.
         On appeal, defendant challenges the validity of his plea agreement and argues the
court abused its discretion when it did not reduce the felonies to misdemeanors. We
conclude that the court did not abuse its discretion when it declined to reduce his felonies
to misdemeanors under section 17, subdivision (b). However, we find that the court
         1
             Unspecified statutory references are to the Penal Code.
abused its discretion when it denied his motion to withdraw his plea, and we reverse the
judgment.
                       FACTUAL AND PROCEDURAL BACKGROUND
       On August 1, 2014, the Monterey County District Attorney’s Office filed an
information charging defendant with five felony counts of unlawful sexual intercourse
with a minor (§ 261.5, subd. (c)) and one misdemeanor count of assault by means likely
to produce great bodily injury (§ 245, subd. (a)(4)).
       The circumstances of the offense are as follows.2 Defendant resided with his
mother, sister, and girlfriend (victim). On July 19, 2014, defendant’s sister said that she
got into a fight with defendant. At one point, defendant hit her in the face with an open
palm then pushed her at least five times, hitting her in the left eye with his right hand.
Defendant then pushed his sister on the bed, got on top of her, and grabbed her around
the throat. She told him to stop, and he eventually left the room.
       Eventually, the police were contacted. Victim, who was 16 years old at the time,
was interviewed about the incident. She was also asked about her relationship with
defendant, who was then 19 years old. Victim said that she had a sexual relationship with
defendant and had consensual sex with defendant approximately five times while in
California and another five times while they were on a trip to Utah. Victim’s mother
(mother) was interviewed, and mother asserted that she knew defendant was dating her
daughter and that she had given them permission to date. However, mother said that she
did not give defendant permission to take her daughter out of state. Mother said that she
suspected that defendant and her daughter were in a sexual relationship.
       On November 12, 2014, defendant pleaded no contest to two felony counts of
unlawful sexual intercourse with a minor (§ 261.5, subd. (c)), which are “wobbler”
       2
        Since defendant pleaded no contest to the charges, we take the facts from the
probation officer’s report.


                                              2
offenses, and one misdemeanor count of assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4)). Defendant was advised that he could be subject to a
maximum sentence of three years eight months in county jail.
       During the change of plea hearing, counsel and the court discussed the court’s
inclination to reduce the two felonies to misdemeanors. Defense counsel stated: “My
client understands that the Court’s inclination was to grant the misdemeanor. I did meet
with the family on Tuesday. Nothing in the discussion that I had with the [victim’s]
family appeared to be contrary to the spirit of our negotiations. I’ve related to my client,
I’ve discussed the case with him, he’s prepared to go forward with the plea. [¶] If the
motion, for some reason, is not granted, it’s my understanding that he would get felony
probation, although I’ve indicated to him, and he heard the Court indicate, that that’s
unlikely unless something happens between now and sentencing. And I’ve certainly
advised him on that.”
       Thereafter, the trial court confirmed its inclination, stating: “The understanding is
that you would not be committed. You could receive a misdemeanor treatment. The
Court’s indicated a leaning in that discretion [sic].”
       Subsequently, the court found that defendant understood his constitutional rights
and the consequences of his plea. The court also found that the plea was entered freely,
voluntarily, and intelligently.
       During the sentencing hearing on December 17, 2014, defendant’s trial counsel
moved to reduce the two felony convictions for unlawful sexual intercourse with a minor
to misdemeanors under section 17, subdivision (b). The court entertained argument from
the parties.
       Afterwards, the court denied defendant’s request to have his felonies reduced to
misdemeanors. When explaining its decision, the court made the following comments:



                                              3
       “I do note, on page 7, a quote from [defendant] where it says, ‘A felony is going to
follow me everywhere. People are talking about me. I thought I was doing everything
the right way. I really cared a lot about [victim],’ in the past sense.
       “The other thing that stands out, I suppose, in this case that—the report’s really
confusing. You know, I actually sat down and started putting down ‘mom’ and ‘aunt’
and ‘sister’ and ‘brother’ and, you know, so I—I went through the whole thing and redid
that. And—and I think it’s—it reflects this sort of environment of unsettled relationships.
       “And, you know, you say that there was some imparting of the information about
this other child. I sure don’t have any note on anything, anywhere, reflecting that I was
informed ever of him having—how old is she, the mother of your child? [¶] . . . [¶] So it’s
like that to me was the biggest surprise [defendant’s child with another woman]. It was
one of the biggest facts in the case, and I don’t have a note of it. I just don’t.
       “It’s—I still feel the same way about the case, at least from the perspective of
there’s a relationship going on between him and her, she’s sixteen, he’s nineteen or
twenty. The parents have made really—they’ve been accommodating. That’s the word I
used in that note. [¶] And I still have all of that, the sense of it is still there, and it still has
the same value in terms of defining the value of the case, but this other relationship with a
child is just different. It just makes it different. It’s like, I can just keep doing that. I can
keep dating sixteen year-old girls. [¶] I’m sure that he felt strongly about the mother of
his child too, just as he did feel strongly, according to him, for [victim].”
       After the court made its decision, defense counsel requested that the court give
defendant the opportunity to withdraw his plea, or at the least give defense counsel a
continuance to brief the issue and file a motion. Defense counsel asserted that defendant
had entered his plea after being told that the court was “strongly leaning in favor” of
reducing the felonies to misdemeanors. Defense counsel explained that “[t]he biggest
concern, at least at that time, was the position of the victim’s family members. If the

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victim’s family members were not opposed to, were not asking for a felony, the Court
was very strongly leaning in favor of granting it.” Defense counsel asserted that he had
conferred with victim’s family members and found that they were not strongly opposed
to reducing the felonies. The trial court denied defendant’s request to withdraw his plea
and denied the request for a continuance to brief the issue.
       The court then placed defendant on three years’ felony probation and suspended
imposition of sentence. The remaining counts against defendant were dismissed.
       The trial court granted defendant’s request for a certificate of probable cause, and
defendant appealed.
                                        DISCUSSION
   1. Trial Court’s Discretion under Section 17, subdivision (b)
       First, defendant argues the trial court abused its discretion when it denied his
motion to reduce his felonies to misdemeanors under section 17, subdivision (b). He
claims the trial court relied on an inappropriate factor—his prior relationship with a
minor girl when he was also a minor—when it made its sentencing decision.
       a. Overview and Standard of Review
       Section 17, subdivision (b) gives the court discretion to reduce “wobbler” offenses
(crimes that can be sentenced either as a felony or a misdemeanor). “[S]ection 17[,
subdivision] (b), read in conjunction with the relevant charging statute, rests the decision
whether to reduce a wobbler solely ‘in the discretion of the court.’ ” (People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).)
       The trial court is entitled to consider multiple factors when determining whether to
exercise its discretion under section 17, subdivision (b). “[S]ince all discretionary
authority is contextual, those factors that direct similar sentencing decisions are relevant,
including ‘the nature and circumstances of the offense, the defendant’s appreciation of
and attitude toward the offense, or his traits of character as evidenced by his behavior and

                                              5
demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the
general objectives of sentencing such as those set forth in California Rules of Court,
[former] rule 410 [now rule 4.410]. The corollary is that even under the broad authority
conferred by section 17[, subdivision] (b), a determination made outside the perimeters
drawn by individualized consideration of the offense, the offender, and the public interest
‘exceeds the bounds of reason.’ ” (Alvarez, supra, 14 Cal.4th at p. 978, fn. omitted.)
       We review the court’s decision to deny the section 17, subdivision (b) motion for
an abuse of discretion. The burden is on the party attacking the sentence to show that the
sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives. (Alvarez,
supra, 14 Cal.4th at p. 978.) Under the standard of review of abuse of discretion, the trial
court’s decision under section 17, subdivision (b) will not be reversed on appeal simply
because reasonable people might disagree. (Alvarez, supra, at p. 978.)
       b. Analysis
       Defendant insists the trial court abused its discretion when it denied his section 17,
subdivision (b) motion, because it based its denial on defendant’s prior relationship with
a 16-year-old girl, the mother of his child. Defendant claims reliance on this fact was
inappropriate, because he was also 16 years old at the time of the prior relationship.
Therefore, he argues that the trial court’s characterization of this prior relationship as
indicative of a history of repeated sexual contact with minors was erroneous. We
disagree, and conclude that defendant has failed to show the trial court abused its
discretion.
       In coming to this conclusion, we note that defendant’s argument does have
some merit. A reasonable person may agree that the fact that defendant fathered a child
with a 16-year-old girl when he was also 16 years old is not necessarily representative of
a trend of illicit relationships. After all, the prior relationship was markedly different.

                                               6
Defendant was also a minor at the time. Further, defendant’s probation report indicates
that he does not have a juvenile criminal history, which means that he likely did not have
prior warning that having sexual intercourse with a minor constitutes unlawful conduct.
       However, a reasonable person may also agree with the trial court’s conclusion that
defendant’s relationship history bore on his propensity to commit similar offenses in the
future. The record reflects that the court believed that defendant’s history of sexual
relationships stemming from when he was a minor meant that he may have the mindset of
“I can just keep doing that. I can keep dating sixteen year-old girls.”
       Additionally, defendant’s prior relationship does not appear to be the only factor
the court considered. The court also appeared concerned with defendant’s understanding
of the severity of the actions. When explaining its decision during the sentencing
hearing, the court pointed out that defendant had previously stated that he “ ‘thought [he]
was doing everything the right way [with victim]’ ” and that he “ ‘cared a lot about
[victim],’ in the past tense.” The court further remarked defendant must have “felt
strongly about the mother of his child too, just as he did feel strongly, according to him,
for [victim].” A defendant’s appreciation of and attitude toward the current offense, as
well as his traits of character, are appropriate factors for the court to consider when
making its sentencing decision. (Alvarez, supra, 14 Cal.4th at p. 978.)
       In sum, we have a situation where reasonable people may disagree on whether the
trial court acted to achieve legitimate sentencing objectives when it declined to reduce the
felony offenses to misdemeanors. However, we are reminded that “[t]rial courts have
broad authority in ruling on motions under section 17 to reduce a crime to a
misdemeanor.” (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.) Further, “ ‘[a]
decision will not be reversed merely because reasonable people might disagree.’ ”
(Alvarez, supra, 14 Cal.4th at p. 978.) We are not authorized nor warranted to substitute
our judgment for the judgment of the trial court. Additionally, defendant’s claim that

                                              7
there were several factors supporting a reduction of the felony offenses to misdemeanors
is akin to an argument that we should reweigh the evidence, which we do not do on
appeal.
       Defendant fails to meet the high burden of demonstrating that the trial court’s
ruling exceeded the bounds of reason. Accordingly, we find no abuse of discretion.
   2. Failure to Grant Defendant’s Motion to Withdraw the Plea
       After the court declined to reduce his felonies to misdemeanors, defendant moved
to withdraw his plea. He now argues that the court erred when it denied his motion.
   a. Overview and Standard of Review
       “A defendant may move the trial court to set aside a guilty plea for good cause at
any time before the entry of judgment. (Pen. Code, § 1018 . . .) ‘Good cause’ means
mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free
judgment and must be shown by clear and convincing evidence. [Citation.] The grant or
denial of such a withdrawal motion is ‘within the sound discretion of the trial court and
must be upheld unless an abuse thereof is clearly demonstrated.’ ” (People v. Ravaux
(2006) 142 Cal.App.4th 914, 917.)
       A defendant is entitled to withdraw his or her plea if the plea was induced by
undisclosed or unkept promises from public officials, including the court. (People v.
West (1970) 3 Cal.3d 595, 610; People v. Wadkins (1965) 63 Cal.2d 110, 113-114.)
   b. Analysis
       Defendant argues that the trial court erred in denying his motion to withdraw his
plea, because good cause existed for the withdrawal. Defendant claims that he pleaded
guilty because the trial court led him to believe that it would reduce the felony
convictions to misdemeanors, absent an objection by the victim’s family. Therefore,
when the trial court declined to reduce the felonies for an entirely different reason, he
should have been permitted to withdraw his plea.

                                              8
          Defendant relies on People v. Spears (1984) 153 Cal.App.3d 79 (Spears). In
Spears, the court had indicated to the defendants during the plea negotiations that there
was a “good likelihood” that they would be placed on probation when sentenced. (Id. at
p. 83.) Further, the climate of the plea bargain was “one of real anticipation on the part
of the defendants and counsel, if not the court, that probation was likely.” (Id. at p. 84.)
However, the defendants eventually pleaded to charges that would make “probation
legally possible, but statutorily disfavored and therefore less than probable.” (Id. at
p. 87.)
          The Spears court noted that the defendants had been advised of the maximum
sentence they could face. However, the trial court had also made references to probation
without giving “the slightest hint that there were statutory hurdles not faced by the other
defendants, or to criminal defendants in general. Thus, because probation was statutorily
disfavored, the advice was misleading to the extent that the defendants had been
permitted by the court to believe that probation was likely.” (Spears, supra, 153
Cal.App.3d at p. 87.) Spears concluded that it must answer two questions: “First ‘Had
defendants been advised of the statutory presumption against probation, would they have
been willing to plead?’ Second, ‘If the court had thought of the disfavored probation
consequence, would it have revised its “probation likely” comment?’ ” (Ibid.)
Thereafter, Spears held that the trial court should have “disclose[d] the full consequences
of such a plea,” which included the consequence of disfavored probation. Accordingly, it
reversed the trial court’s denial of the motion to withdraw the plea. (Ibid.)
          Defendant maintains that Spears is analogous to this case, because like the record
in Spears, the record here reflects a climate where it seemed that the grant of the
section 17, subdivision (b) motion was likely. And, defendant maintains that he pleaded
no contest because the court led him to believe that the only condition precedent to its



                                               9
granting of the section 17, subdivision (b) motion was approval by the victim’s family.
We agree.
       During the change of plea hearing, defense counsel stated: “My client understands
that the Court’s inclination was to grant the misdemeanor. I did meet with the family on
Tuesday. Nothing in the discussion that I had with the [victim’s] family appeared to be
contrary to the spirit of our negotiations. I’ve related to my client, I’ve discussed the case
with him, he’s prepared to go forward with the plea. [¶] If the motion, for some reason, is
not granted, it’s my understanding that he would get felony probation, although I’ve
indicated to him, and he heard the Court indicate, that that’s unlikely unless something
happens between now and sentencing. And I’ve certainly advised him on that.”
       During the sentencing hearing, after the trial court declined to reduce the felony
convictions to misdemeanors, defendant’s counsel asserted that he had previously related
to defendant that “the Court was strongly leaning in favor of granting the motion to
reduce it to a misdemeanor,” and that “[t]he biggest concern, at least at that time, was the
position of the victim’s family members. If the victim’s family members were not
opposed to, were not asking for a felony, the Court was very strongly leaning in favor of
granting it.”
       We agree with the People that the record does not reflect that the court made an
unequivocal promise to defendant that it would reduce the felony convictions to
misdemeanors. However, the record supports defendant’s claim that he pleaded guilty
because he believed that the only condition precedent to the reduction of the felonies was
approval by the victim’s family.
       Defendant’s reliance on the court’s statements is shown by clear and convincing
evidence, premised by his defense counsel’s representations to the court during the
change of plea hearing and the sentencing hearing. And, as indicated in the change of
plea hearing, defendant had already consulted with the victim’s family, who had no

                                             10
objection to the reduction of the felonies to misdemeanors. Accordingly, when the court
decided not to reduce his felonies to misdemeanors based on an entirely different
reason—his prior relationship with another 16-year-old girl when he was also a minor—
the court should have permitted him to withdraw his plea. Defense counsel stated during
the sentencing hearing that the fact that defendant had that prior relationship was part of
the record and had been discussed by the parties. The trial court did not make any
comments regarding this prior relationship during the change of plea hearing and made
no indication that this was a factor that could sway its decision to reduce the felonies.
       We acknowledge that “ ‘the mere fact that the defendant, knowing his rights and
the consequences of his act, entered the plea under a hope of leniency presents no ground
for the exercise of the discretion of the court.’ ” (People v. Burkett (1953) 118
Cal.App.2d 204, 210.) That is not what transpired here. Certainly, defendant was
advised that he would face felony probation if the court did not grant his section 17,
subdivision (b) motion. Defendant, however, was also advised that the court was
“heavily inclined” to reduce the felonies and, based on the trial court’s comments, was
led to believe that the only factor preventing the court from reducing the felonies was an
objection from the victim’s family.
       “Trial 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, 796-797.) Here, defendant has established good cause, because the
record reflects that he relied on the trial court’s statements that it would grant his
section 17, subdivision (b) motion absent objection from the victim’s family.
Accordingly, we must hold that the trial court abused its discretion when it refused to
allow him to withdraw his plea. Reversal is therefore required.3
       3
        Because we conclude the trial court erred in denying his motion to withdraw his
plea, we need not address defendant’s other arguments on appeal.


                                              11
                                      DISPOSITION
       The judgment is reversed. The matter is remanded with instructions to allow
defendant to withdraw his plea. If he elects not to withdraw his plea, the judgment from
which this appeal has been taken shall be reinstated.




                                            12
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Márquez, J.
