APPEAL from an order of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. (Los Angeles County Super. Ct. No. KA089786)
The opinion of the court was delivered by: Flier, J.
CERTIFIED FOR PUBLICATION
We affirm an order denying appellant David Lee Williams's motion to
withdraw his no contest plea. His motion, which was made after entry
of judgment, was not timely under Penal Code section 1018.*fn1
His argument that he had six months to file a motion to
withdraw his plea is inconsistent with section 1018.
On August 5, 2010, appellant was charged with one count of petty theft with a prior in violation of section 666. It was alleged that he suffered prior convictions including a prior theft-related conviction. On the same day, he pled no contest to the petty theft with a prior and admitted the prior theft-related conviction. Also on August 5, the court imposed a three-year prison sentence, suspended the execution of sentence, and placed appellant on formal probation.
On December 16, 2010, appellant moved pursuant to section 1018 to withdraw his no contest plea. He argued that he should be allowed to take advantage of an amendment to section 666, which inured to his benefit. The court denied the motion and issued a certificate of probable cause for appeal.
It is undisputed that the Legislature amended section 666 in September 2010 in a manner that would benefit appellant. The parties dispute whether section 1018 permits appellant to withdraw his plea after imposition of judgment.
Section 1018 provides: "Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, 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. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice." (Italics added.)
If a trial court suspends imposition of sentence, no judgment is pending. (People v. Howard (1997) 16 Cal.4th 1081, 1087.) Pursuant to section 1018, when entry of judgment is suspended, a defendant must bring a motion to withdraw a plea within six months. (People v. Miranda (2004) 123 Cal.App.4th 1124, 1133-1134 (Miranda).) Appellant argues that the same six-month period applies to him because "[p]ersons placed on probation get the benefit of . . . section 1018; those who are given executed prison sentences do not." Thus, according to appellant, the statute distinguishes between defendants placed on probation and those remanded to serve a prison sentence. In contrast, respondent argues that the critical question is whether judgment was entered or suspended.
We agree with respondent.
1. The Plain Language of the Statute
The plain language of the statute supports respondent's interpretation. The statute does not distinguish between defendants placed on probation and those ordered to serve a prison sentence. It distinguishes between defendants sentenced after a guilty plea and defendants for whom imposition of sentence is suspended. The statute permits a court to allow a defendant to withdraw a plea either (1) "any time before judgment" or (2) "within six months after an order granting probation is made if entry of judgment is suspended." Thus, the critical question is whether judgment was ...