THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE NANCE, Defendant and Appellant, 1 Cal. App. 4th 1453

Opinion McKINSTER, J. The sole issue presented by this appeal is whether the burden of proof borne by a defendant moving to withdraw his plea of guilty pursuant to Penal Code

section 1018, prior to pronouncement of judgment, is by the standard of clear and convincing evidence or by a preponderance of the evidence. Finding that the trial court properly denied the motion to withdraw the plea of guilty using the clear and convincing evidence standard of proof, we affirm. Facts The defendant was charged in the Bear Valley Justice Court, San Bernardino County, by an amended complaint with one count of murder (Pen. Code, § 187) and two counts of attempted murder (Pen. Code, §§ 664 and 187).

It was alleged as to all three counts that during the commission of the offenses the defendant personally used a firearm within the meaning of Penal Code sections 1203.06, subdivision (a)(1) and 12022.5. It was further alleged as to the two attempted murder charges that the defendant inflicted great bodily injury upon the victims within the meaning of Penal Code

section 12022.7. After testimony at the preliminary hearing had begun, the defendant entered a plea of guilty to murder in the first degree, and he admitted the allegation that he had personally used a firearm during the commission of that offense. Pursuant to the negotiated plea, the remaining charges and allegations would be dismissed. At the time set for pronouncement of judgment, the defendant requested to withdraw his plea of guilty pursuant to Penal Code

section 1018, and the case was remanded for a hearing on the motion to withdraw the plea before the judge who had accepted the plea. At that hearing the only witness called was the defendant. The defendant testified that he did not understand the change of plea form because of a reading problem which he referred to as “mirror vision”; although, he conceded that his attorney had read to him the statements contained on the form and that he had initialed the form after each statement was read to him. He also did not want to put the young victim of one of the attempted murder counts through the ordeal of testifying.

He testified, “My whole purpose was, that I told [defendant’s attorney], is that I didn’t want to hurt the boy any more than—but that I wanted it to come out, what happened, so that maybe some laws could be changed and families won’t have to be destroyed and human beings won’t be destroyed.” The defendant did not protest his innocence of the crimes nor did he claim any mistake, ignorance, inadvertence, or any other factor which overcame the exercise of his free judgment as good cause for the withdrawal of the plea.

At the conclusion of the hearing the court denied the motion and returned the case for pronouncement of judgment in the superior court. The court did not clearly state what standard of proof it was using in denying the motion. Discussion Penal Code

section 1018 provides: “On application of the defendant at any time before judgment the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This

section shall be liberally construed to effect these objects and to promote justice.” The California Supreme Court has held that the burden of proof necessary to establish the good cause standard in a prejudgment motion to withdraw a guilty plea pursuant to Penal Code

section 1018 is by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566 [116 Cal.Rptr. 242, 526 P.2d 250].) That court had previously stated in dictum that the standard was by clear and convincing evidence. (In re Dennis M. (1969) 70 Cal.2d 444, 457, fn. 10 [75 Cal.Rptr. 1, 450 P.2d 296].) Recently, the Supreme Court has reaffirmed the clear and convincing evidence standard of proof in People v.

Wharton (1991) 53 Cal.3d 522, 585 [280 Cal.Rptr. 631, 809 P.2d 290]. “It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties. [Citations.]” (People v. Mack (1986) 178 Cal.App.3d 1026, 1032 [224 Cal.Rptr. 208].) We presume that the court in the present case applied the clear and convincing standard of proof as stated in People v. Cruz, supra, in denying the motion. Withdrawal of a guilty plea is left to the sound discretion of the trial court.

A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion. (In re Brown (1973) 9 Cal.3d 679, 685 [108 Cal.Rptr. 801, 511 P.2d 1153].) We find no abuse of discretion in the present case. The facts presented at the motion to withdraw do not constitute good cause. In essence, the defendant stated that he did not want to put a young victim through the ordeal of trial, and while he apparently did not question his culpability for the acts, he wanted a trial so the reason for his criminal acts would be made public and result in a change in the law.

None of this establishes good cause because it does not indicate the defendant was operating under mistake, ignorance, or inadvertence, or that the exercise of his free judgment was overcome. (People v. Barteau (1970) 10 Cal.App.3d 483,486 [89 Cal.Rptr. 139]; People v.

Cruz, supra, 12 Cal.3d 562 at p. 566.) A plea may not be withdrawn simply because the defendant has changed his mind. (In re Brown, supra, 9 Cal.3d at p. 686.) “The plea of guilty constitutes an admission of every element entering into the offense charged, and constitutes a conclusive admission of defendant’s guilt. [Citation.] “A motion to withdraw a plea of guilty, pursuant to the provisions of

section 1018 of the Penal Code [footnote omitted] is addressed to the sound discretion of the trial court, and in considering such a motion, the doctrines of ‘presumptive innocence’ and ‘proof beyond a reasonable doubt’ are inapplicable, since the defendant has already admitted his guilt by his plea of guilty.” (People v. Outcault (1949) 90 Cal.App.2d 25, 29-30 [202 P.2d 602].) The defendant does not attack the court’s finding under the clear and convincing evidence standard of proof. Rather, he attacks the standard of proof itself.

The defendant contends the clear and convincing evidence standard of proof was erroneously adopted, and the court should have used a preponderance of the evidence standard. It is clear, however, that the evidence adduced at the hearing on the motion is inadequate to establish good cause even under this lower standard of proof. Countless courts have held that the correct burden of proof to be applied in a prejudgment motion to withdraw a plea of guilty for good cause is clear and convincing evidence. (See, e.g., People v. Cooper (1954) 123 Cal.App.2d 353, 356 [266 P.2d 566]; People v.

Ottenstror (1954) 127 Cal.App.2d 104, 109 [273 P.2d 289]; People v. Beck (1961) 188 Cal.App.2d 549, 552 [10 Cal.Rptr. 396]; People v. Parker (1961) 196 Cal.App.2d 704, 708 [16 Cal.Rptr. 718]; People v. McDonough (1961) 198 Cal.App.2d 84, 90 [17 Cal.Rptr. 643]; People v. Gannaro (1963) 216 Cal.App.2d 25, 28 [30 Cal.Rptr. 711]; People v. Caruso (1959) 174 Cal.App.2d 624, 634 [345 P.2d 282]; People v. Moffett (1955) 137 Cal.App.2d 626, 629 [290 P.2d 667]; People v. Perry (1963) 220 Cal.App.2d 841, 844 [34 Cal.Rptr. 110]; People v. Singh (1957) 156 Cal.App.2d 363, 366 [319 P.2d 697]; People v.

Brotherton (1966) 239 Cal.App.2d 195, 200 [48 Cal.Rptr. 513]; People v. Dena (1972) 25 Cal.App.3d 1001, 1008-1009 [102 Cal.Rptr. 357]; People v. Waters (1975) 52 Cal.App.3d 323, 328 [125 Cal.Rptr. 46]; People v. Urfer (1979) 94 Cal.App.3d 887, 892 [156 Cal.Rptr. 682]; People v. Harvey (1984) 151 Cal.App.3d 660, 666-667 [198 Cal.Rptr. 858].) It seems beyond question that the burden of proof necessary to establish good cause for the withdrawal of a guilty plea prior to judgment is by clear and convincing evidence.

In addition to the plethora of cases from the Courts of Appeal, the California Supreme Court has embraced it in three opinions. Indeed, this burden of proof is so entrenched in the case law of California that it has taken on the character of bright line law. We stand on the principle of stare decisis. If this burden of proof was erroneously adopted, we leave it to the Supreme Court to abandon it and state a new one. Disposition The judgment is affirmed. Hollenhorst, Acting P. J., concurred.