People v. Acuna CA3

Filed 10/7/21 P. v. Acuna CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C091971

Plaintiff and Respondent, (Super. Ct. No. 18FE007045)

v.

DAVID ACUNA,

Defendant and Appellant.

Defendant David Acuna entered a no contest plea to second degree murder and admitted a prior murder conviction. Defendant later moved to withdraw his plea and the court denied the motion. On appeal, defendant contends the trial court abused its discretion when it denied the motion to withdraw the plea. We will affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Defendant, an inmate at California State Prison, Sacramento, strangled and killed his cellmate. The prosecution charged defendant with murder (Pen. Code, § 187, subd.

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(a))1 with a prior murder conviction special circumstance (§ 190.2, subd. (a)(2)) and assault with a deadly weapon by a life prisoner (§ 4500). The prosecution also alleged defendant had two prior convictions for serious felonies that qualified as strikes. (§§ 667, subds. (b)-(i), 1170.12.) Defendant pleaded no contest to second degree murder and admitted a prior murder conviction as a strike and as a prior serious felony. In exchange for the plea, the prosecution dismissed a pending case against defendant, along with the remaining counts and allegations. During the plea colloquy, defendant agreed he understood the terms of the plea agreement and the factual basis for the plea. Defense counsel stated he disagreed with defendant’s decision to enter into the plea agreement, but that he had “met with him numerous times” and was satisfied the plea agreement was how defendant wanted to proceed. Defendant agreed with this characterization. Defendant agreed he “had enough time to discuss [the] plea with [his] counsel,” along with “all the possible consequences of [the] plea.” He acknowledged his attorney had explained “the elements of the crimes . . . and the possible legal defenses to [his] case.” He stated no one had “made any promises to get [him] to plea,” aside from the prosecution’s representations on the record, and no one had threatened him to enter into the agreement. The trial court confirmed defendant was entering into the plea agreement because he felt it was in his best interests to do so, and not because of any external force or threat. Finally, defendant confirmed he was “pleading guilty and making [his] admission freely and voluntarily.” The court found the “plea and waivers were made knowingly, intelligently and voluntarily,” and accepted the plea. Later, at the sentencing hearing, defense counsel and the court had the following exchange: