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The People v. Derek Alan Nix

November 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DEREK ALAN NIX, DEFENDANT AND APPELLANT.



(Super. Ct. No. 62-103755)

The opinion of the court was delivered by: Nicholson , J.

P. v. Nix 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following his plea of guilty to resisting an officer (Pen. Code, § 69)*fn1 and obstructing an officer in the performance of his duties (§ 148, subd. (a)), defendant Derek Alan Nix moved to withdraw his plea, claiming counsel had improperly explained the elements of the offense. The court denied the motion. Defendant appeals this denial as an abuse of discretion, claiming he demonstrated good cause in that his plea was made due to mistake and misunderstanding of the law. We affirm.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn2

In the course of distinct interactions with Roseville police officers, defendant made a number of threatening statements to officers. As a result, he was charged in two separate cases with making criminal threats, resisting arrest and obstructing an officer in the performance of his duties. It was also alleged defendant had a prior strike conviction and a prior serious felony conviction. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667, subd. (a)(1).) As part of a negotiated plea, defendant pleaded no contest to resisting an officer and obstructing an officer in the performance of his duties. The criminal threats and prior strike conviction allegations were dismissed.

Roughly two weeks after the plea, defendant moved to withdraw his plea. The court then conducted a Marsden*fn3 type hearing. During that hearing, defendant indicated counsel had not correctly described the elements of section 69 to him, and that but for counsel's alleged misrepresentation of the law, defendant would not have entered the plea. Defendant stated counsel had informed him that "any force whatsoever is a PC 69 and just even the most moderate of force." Defendant claimed he understood this explanation to mean that force was the only element of the offense, he did not know there must also "be a criminal objective to resist or obstruct the officer in the discharge of his duty." Defendant claimed counsel did not tell him that criminal objective was also an element of the offense. He did not believe this criminal objective could be proven, so he argued his "plea was made in haste and a misunderstanding of the law."

The court noted that in entering his plea, defendant had been able to avoid a criminal threats conviction and the possibility of going to prison for a maximum of over 10 years. The court also noted that the criminal threats conviction would have doubled defendant's sentence, because it was a strike and that a prior strike conviction had been alleged.

Counsel stated he had reviewed the elements of the offense with defendant and had advised defendant the degree of force was not necessarily an element of section 69, but counsel clarified he did not tell defendant that force was the only element of the offense. Counsel indicated he had extensive discussions about the charges with defendant. Counsel explained to defendant the exposure he faced because of the strike and prior prison term allegations. Because of the significant prison time defendant was facing, counsel recommended taking the plea. He indicated defendant had been "waffling a little back and forth" but counsel believed when defendant entered the plea, "it was a voluntary plea, and I do believe that we adequately discussed the elements both in court and prior to that."

The court denied the Marsden motion, finding there was a credibility question between counsel and defendant. The court accepted counsel's explanation.

Defendant then filed a motion to withdraw his plea claiming he had been confused about the elements necessary to prove he resisted a police officer and that such confusion was "understandable given the complexity of this statute and the fact that [he] was charged with two different versions of this offense in his two cases." Defendant included a declaration that he was unaware of the facts underlying the charges in both cases and the elements necessary to convict him of those charges. He reiterated the claim that he believed any amount of force used against an officer would result in a conviction, and did not understand there must also be a criminal objective. Contradicting himself from earlier proceedings, he also claimed he felt rushed prior to entering the pleas and did not have adequate time to understand his attorney's advice.

The court relied on the statements of defendant and counsel during the Marsden hearing, the plea transcript and the change of plea form. The court noted "defendant acknowledged on his plea and waiver form that he had adequate time to speak with his attorney, who had explained his defenses and any possible consequences." Counsel had indicated he had advised defendant of the "nature of the plea and the consequences and any possible defenses." The court considered the statements of both defendant and counsel and found counsel's statements at the Marsden hearing more credible than defendant's and found defendant's declaration was not credible. The court found defendant had been sufficiently warned of the consequences of his plea and understood those consequences. He had "more than ample time to think about it, rely on . . . competent information advice ...


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