Nance

I concur with the majority’s affirmance of the judgment entered below—and I do so in agreement with the majority’s conclusion that defendant failed, under any evidentiary burden of proof standard, to establish good cause to be permitted to withdraw his guilty plea/admission pursuant to section 1018 of the Penal Code. 1 However, I write separately to express my disagreement with the majority’s rather cursory conclusion concerning the evidentiary burden of proof issue raised by defendant in this case. Unlike the majority, I agree with defendant that the “preponderance of the evidence” evidentiary burden of proof standard (hereinafter referred to as the POE standard), rather than the “clear and convincing” evidentiary burden of proof standard (hereinafter referred to as the C/C standard), applies to a criminal defendant’s evidentiary burden of proof (that is, a criminal defendant’s “burden of persuasion”) regarding a section 1018 motion to withdraw a guilty plea/admission prior to pronouncement of judgment and imposition of sentence.

Prior to analyzing the evidentiary burden of proof issue raised by defendant, two prefatory observations are particularly in order:

(1) Given this…

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 *1455 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…

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.

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,…