People v. Mack CA3

Filed 4/7/23 P. v. Mack CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE,

Plaintiff and Respondent, C095790

v. (Super. Ct. No. P18CRF0480)

DARIN ALLEN MACK,

Defendant and Appellant.

Defendant Darin Allen Mack pleaded no contest to three felony sexual abuse charges in exchange for an aggregate term of 13 years in state prison. He then moved to withdraw from his plea agreement but the trial court denied his motion. On appeal, defendant contends the trial court should have granted his motion to withdraw from the plea agreement based on Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §§ 1.3, 2), which amended Penal Code section 1170.1, subdivision (d)(2);1 in the alternative, defendant is entitled to resentencing based on those amendments; and his trial counsel was ineffective if those contentions are deemed forfeited.

1 Undesignated statutory references are to the Penal Code.

1

Because defendant forfeited his contentions and he has not shown trial counsel deficiency, we will affirm the judgment and trial court orders. BACKGROUND In December 2018, the People charged defendant with numerous felony sexual abuse offenses. In October 2021, defendant pleaded no contest to committing a lewd act upon a 14 or 15 year old (§ 288, subd. (c)(1)), forcible rape of a minor 14 years or older (§§ 261, subd. (a)(2), 264, subd. (c)(2)), and forcible oral copulation of a 14 or 15 year old (§ 287, subd. (c)(2)(C) [former §288a, subd. (c)(2)(C)]). He stipulated to an aggregate term of 13 years in state prison: the upper term of 10 years on the charge of forcible oral copulation (accomplished by duress), a consecutive lower term of three years on the charge of forcible rape (accomplished by duress), and a concurrent middle term of two years on the charge of committing a lewd act upon a minor. On December 10, 2021, the date set for sentencing, defendant asked to withdraw from his plea agreement. The hearing was continued to allow defendant to file a formal motion, which he filed on January 6, 2022. In support of the motion, defendant argued he entered the plea agreement under duress. At the hearing on defendant’s motion, counsel for defendant argued defendant “was under duress when he entered the plea, . . . he didn’t fully understand what was going on when he entered the plea, . . . he was disillusioned and hopeless when his Faretta motion was denied, and . . . he entered his plea because he felt like he was being ganged up on.” Defendant also asserted that his trial counsel was not prepared on the date trial was set to begin. The trial court denied defendant’s motion and sentenced him according to the terms of his plea agreement. DISCUSSION Defendant contends the trial court should have granted his motion to withdraw from the plea agreement based on Senate Bill No. 567. But Senate Bill No. 567 took effect on January 1, 2022, before defendant filed his motion to withdraw from the plea