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Name: People v. Kunes
Case #: B251272
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/03/2014

Trial court properly rejected motion to withdraw plea based on ignorance of a necessity defense where the defense was not viable. While on home detention, Kunes cut his GPS monitoring device, mailed it to the sheriff, and flew to Pennsylvania. He entered a plea of no contest to a violation of Penal Code section 4532, subdivision (b)(2), escape by force. The trial court denied his motion to withdraw the plea on the basis that his trial counsel had not advised him he had a necessity defense based on the fact that he flew to Pennsylvania to take care of his elderly parents who had cancer. On appeal, Kunes contended that he did not escape by force, and his trial counsel was ineffective because he advised him to accept a plea agreement and did not inform him that he had a colorable necessity defense. Held: Affirmed. A defendant who moves to withdraw his plea must show that he was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment, and that he would not have accepted the plea had it not been for the mistake. Substantial evidence supported the trial court’s implied finding that appellant was not operating under any mistake or other factor which overcame his exercise of free judgment when he entered his plea. The defense he claimed was not viable. Trial counsel’s performance was not deficient or prejudicial because Kunes’ act of removing his GPS device and flying out of state constituted escape by force. A forcible escape may occur when a person wrongfully uses force against property, and Kunes used scissors to cut off his GPS device to facilitate his escape. Even if Kunes could have prevailed on a motion to dismiss the forcible escape charge, the outcome would not have been more favorable than the terms of the plea bargain.