Opinion
Monterey County Super. Ct. No. SS043066A
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RUSHING, P.J.
Introduction
Facing several felony charges, defendant Tony Esquivel pleaded no contest to the felonies of preventing or dissuading a victim (Pen. Code, § 136.1) and inflicting corporal injury on a cohabitant (§ 273.5). In exchange, other charges were dropped. After defendant’s motion to withdraw this plea was denied, the court sentenced defendant pursuant to the bargain. Imposition of sentence was suspended for three years, and defendant was placed on probation with a variety of conditions, including paying several fees, avoiding the victim, not contacting her, attending 52 weeks of domestic violence classes, and spending 365 days in custody.
Unspecified section references are to the Penal Code.
Defendant has appealed after obtaining a certificate of probable cause. He contends that his motion to withdraw his plea should have been granted because his attorney did not advise him that dissuading a witness was a strike with consequences under the “Three Strikes” statutes for future sentences. He also asserts that his trial attorneys were incompetent, first in inadequately advising him, second in making an inadequate motion to withdraw his plea. Shortly before oral argument in this appeal, defendant also filed a habeas corpus petition amplifying his allegations of attorney incompetence. We ordered this petition to be considered together with this appeal and resubmitted the cause upon completion upon habeas briefing. For the reasons stated below, we will reject these contentions and affirm the judgment. We will dispose of the habeas petition by separate order.
The No Contest Plea
At a preliminary examination, there was evidence that defendant struggled with a former girlfriend the evening of November 25, 2005, when she rebuffed his attempts to have sex with her. During their struggle she grabbed his testicles and he choked her. She eventually got free and left her apartment. She later noticed that she was missing compact discs and their stand. On November 26, 2005, he left a message on her telephone answering machine threatening to cut her face if she talked to the police.
These incidents led to felony charges of assault with intent to rape (count 1 - § 220), attempted dissuasion of a witness or victim by threat of injury (count 2 - § 136.1, subd. (c)(1)), and threats of violence (count 3 - § 422), and misdemeanor charges of battering a former cohabitant (count 4 - § 243, subd. (e)) and petty theft (count 5 - § 484, subd. (a)). The prosecutor elected to allege in the information that counts 1 and 3 were serious felonies within the meaning of section 1192.7, subdivision (c). (§ 969f, subd. (a).) There was no such allegation as to the victim dissuasion. On March 3, 2005, defendant appeared with Attorney Terrance McCleerey and was arraigned on these charges. The case was set for a jury trial calendar call on April 21, 2005.
Section 136.1 prohibits a variety of related acts, including knowingly and maliciously attempting to prevent or dissuade a victim or witness from reporting another crime to law enforcement or from testifying in court. It is a felony “[w]here the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.” (Id., subd. (c)(1).)
On April 21, 2005, an agreed disposition was announced. The information was amended to include count 6, a felony of inflicting corporal injury on a cohabitant. (§ 273.5.) McCleerey stated that defendant was “going to be entering a no contest plea to an allegation of 273.5 and a Count 2” and would receive felony probation.
The court, Monterey Superior Court Judge Villareal, questioned defendant about his understanding of the disposition. Among other things, the court pointed out that the maximum prison sentence could be for five years. The court also stated, “Sir, if you enter a guilty plea to Count 2, the 136.1, dissuading a witness, that constitutes a strike and as a strike that will follow you for the rest of your life and could be used to double any sentence that you may be faced with in the future or worse case scenario, if you have two strikes, if you suffered another strike conviction, then you can go to prison for the rest of your life; do you understand, sir?”
“THE DEFENDANT: Yes, I do, your Honor.
“THE COURT: And it also impacts the amount of the percentage of time you spend in custody; do you understand?
“THE DEFENDANT: Yes, I do.”
The prosecutor elaborated that the percentage of time in custody would be raised significantly to 80 or 85 percent.
On the same date, defendant signed a form rights waiver that stated, among other things, “I have discussed the charge(s), the facts, the possible defenses, and the consequences of my plea with my attorney.” “I have personally read my entire rights form and signed or initialed each of the appropriate spaces.”
On the same date, Attorney McCleerey signed the same waiver form stating the following: “I am the attorney of record and I have explained each of the above rights to the defendant, and have explained and discussed the facts and possible defenses to the charge(s), and the possible consequences of a plea of guilty or no contest. . . . I have witnessed the reading of this form by the defendant and his/her initialing and signing this form.”
The trial court found that defendant understood the consequences of the plea and knowingly and voluntarily waived his rights. Defendant pleaded no contest to dissuading a witness and the felony of inflicting corporal injury on a cohabitant. The trial court did not ask defendant to separately admit or deny that the section 136.1 violation was a serious felony.
Defendant erroneously asserts that he pleaded guilty to the misdemeanor section 243, subdivision (e) charge.
The Motion to Withdraw the Plea
On May 19, 2005, the Monterey County Public Defender was appointed to represent defendant in making a motion to withdraw his plea.
In support of the motion, Terrance McCleerey filed a declaration stating the following. He represented defendant from January through May 19, 2005. They appeared for a calendar call on April 21, 2005. “Prior to this hearing I had not discussed with [defendant] the meaning or ramifications of a plea to a ‘strike’ which is what the PC 136.1 charge constitutes . . . .” As far as McCleerey knew, defendant first heard this charge was a strike when the court mentioned it. “I did notice at that time that [defendant] looked at me and appeared confused and surprised at the advisement regarding the charge being a ‘strike’ . . . .”
At a hearing on August 4, 2005, Deputy Public Defender Michael Pettit made the following offer of proof. If defendant, who was present, filed a declaration or testified he would say “that he was under the impression that he was pleading to one count of spousal domestic violence 273.5. He didn’t have—the first time he heard there was a strike involved was in court on the record, didn’t fully understand what that meant. In fact, I’m not sure he understood it to any degree. But his understanding and what happened were two different things.”
Pettit argued: “as the Court knows, especially on a day like today, things can be rather fast, things can be hurried and rushed, people are talking to you, sometimes two – your attorney’s talking to you and the judge is talking to you. It can be rather a stressful situation. I think he was under an amount of duress when he entered the plea and unfortunately was not able to fully talk to counsel about it.”
The prosecutor objected to the lack of a declaration from defendant. She further argued that defendant was fully advised by the court about the nature of the strike and he was poised when he answered that he understood.
The court, Monterey County Superior Court Judge Meyer, read aloud Judge Villareal’s advice to defendant regarding the strike and defendant’s replies. The court denied the motion, stating, “looking at that as well as the entire record, I find it insufficient showing for withdraw of plea [sic].”
Defendant said he signed the wrong color form, since he was supposed to be “signing a white form to a misdemeanor” because “[t]hat’s what I was pleading to.” The court pointed out that defendant was advised that he could have gone to prison for up to five years. Defendant said, “I’ll take it if I’m guilty of it.” The court repeated that the motion was denied.
Custody Credit Limitations
Both the prosecutor and the trial court advised defendant that his admission of witness or victim intimidation under section 136.1 could affect the amount of time he might spend in custody. Presumably they were referring to the 20 percent rule included in the Three Strikes statutes. Under these statutes, if a defendant has a prior “strike” conviction, he cannot earn more that one-fifth off his prison sentence for conduct and worktime credit. (§§ 1170.12, subd. (a)(5); 667, subd. (c)(5).)
Strikes are past convictions that appear on statutory lists of serious and violent felonies. (§§ 1170.12, subd. (b)(1); 667, subd. (d)(1).) “[I]ntimidation of victims or witnesses, in violation of Section 136.1” is on the list of serious felonies. (§ 1192.7, subd. (c)(37).) Since “intimidation” is not among the statutory elements in section 136.1, this description is intended to include all violations of section 136.1. (People v. Neely (2004) 124 Cal.App.4th 1258, 1266.)
Section 136.1 is not on the list of violent felonies in section 667.5, subdivision (c), except as follows: “(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.” A felony violates section 186.22 only if it is “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1); cf. People v. Briceno (2004) 34 Cal.4th 451, 459.) Since there was no evidence of gang-related witness intimidation in this case, the 15 percent worktime custody credit limitation (§ 2933.1) for violent felonies is inapplicable, contrary to the prosecutor’s suggestion.
Section 969f gives prosecutors the option of alleging that a charged felony qualifies as a serious felony. (People v. Leslie (1996) 47 Cal.App.4th 198, 204.) A defendant who pleads guilty must separately admit or deny that the crime is a serious felony if it is so alleged, but not otherwise. (§ 969f, subd. (a).) As noted above, this aspect of the section 136.1 charge was not alleged in the information and the trial court did not ask defendant for a specific admission or denial.
We note that the trial court went beyond the call of duty in advising defendant that his conviction of dissuading a witness qualified as a strike which would limit the amount of custody credit he could earn in jail or prison. Trial courts are not required to advise defendants before guilty pleas of the collateral consequences either of credit limits in the Three Strikes law (People v. Barella (1999) 20 Cal.4th 261, 263) or the possible use of their impending conviction to enhance the sentence for a future crime. (People v. Gurule (2002) 28 Cal.4th 557, 634; People v. Crosby (1992) 3 Cal.App.4th 1352, 1355-1356.)
Validity of the Denial of the Motion to Withdraw
Section 1018 provides in pertinent part: “On application of the defendant at any time before judgment . . ., 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.” People v. Cruz (1974) 12 Cal.3d 562 stated: “Mistake, ignorance, or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.” (Id. at p. 566; cf. People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797.) A trial court is not required to accept a defendant’s assertion (People v. Brotherton (1966) 239 Cal.App.2d 195, 201-202), particularly if it is contradicted by other evidence. (People v. Hunt (1985) 174 Cal.App.3d 95, 103-104.)
A reviewing court must adopt the factual findings of the trial court that are supported by substantial evidence. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The test on appeal is whether the trial court abused its discretion in ruling on the motion to withdraw a plea. (Ibid.; People v. Wharton (1991) 53 Cal.3d 522, 585; People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.)
Defendant argues, in part, that his no contest plea was involuntary because he has established that his former attorney, McCleerey, failed to advise him of “the consequences of a felony strike conviction” or that a violation of section 136.1 is a strike. “[H]e was wholly uni[n]formed of a key factor relevant to the plea . . . .” While it is true that McCleerey so declared, McCleerey had earlier signed a statement that he had “explained and discussed the facts and possible defenses to the charge(s), and the possible consequences of a plea of guilty or no contest.” It was up to the trial court to resolve this conflict in these declarations.
The Attorney General points out, as did the trial court, that the trial court had advised defendant of the nature and consequences of a strike conviction. However, it is established that judicial advice at a change of plea hearing about the possible consequences of a guilty plea is no substitute for the advice a defense attorney should provide the defendant after a diligent investigation preceding the change of plea hearing. (In re Resendiz (2001) 25 Cal.4th 230, 240-241 [immigration consequences].)
Here, the record contains not merely judicial advice, but defendant’s oral assent to understanding the consequences of a no contest plea to the strike of violating section 136.1. Defendant’s oral statements are additional evidence supporting the implied conclusion that he was adequately advised by counsel. They confirm his written statement that he had “discussed the charge(s), the facts, the possible defenses, and the consequences of my plea with my attorney.” His later self-contradiction merely set the stage for the trial court to resolve this conflict. We conclude that substantial evidence supports the trial court’s implicit disbelief of defendant’s later claims. (Cf. People v. Gutierrez (2003) 106 Cal.App.4th 169, 175-176 [a defendant’s later declaration contradicted his initials and signature on waiver of rights form].)
Alleged Ineffectiveness of Counsel
Defendant further argues that both his trial attorneys were unconstitutionally ineffective. McCleerey gave him inadequate pre-plea advice, and Pettit failed to submit a written declaration from defendant in support of his motion to withdraw his guilty plea. Instead of a written declaration, Pettit made an offer of proof to which the prosecutor objected. The record contains no express ruling by the trial court on this objection. A party cannot complain on appeal about evidence being considered over his objection without obtaining a ruling on the objection. (People v. Roberts (1992) 2 Cal.4th 271, 297; People v. Ramos (1997) 15 Cal.4th 1133, 1171.)
Regarding the absence of a written declaration, we recognize that the trial court denied the motion for an “insufficient showing.” But it is not clear whether the trial court meant that the showing was insufficient due to the absence of a declaration or even accepting the offer of proof. Defendant demonstrates no prejudice resulting from his counsel proceeding by way of an offer of proof rather than a written declaration. (People v. Prince (1968) 268 Cal.App.2d 398, 417.) He does not show that his offer of proof was rejected or that his credibility would have been enhanced had his claims been put in writing. Even assuming his written declaration would have corroborated what McCleerey had stated in a written declaration, the trial court was free to disbelieve their statements based on the conflicting evidence described above.
Regarding McCleerey’s allegedly inadequate advice, People v. Reed (1998) 62 Cal.App.4th 593, cited by neither party, has concluded “that a defense counsel’s omission to inform a defendant about the limitations on parole eligibility found in section 2933.1 is not ineffective assistance under the federal constitutional criteria articulated in Strickland[ v. Washington (1984) 466 U.S. 668].” (Id. at p. 601.) This conclusion followed from federal law establishing that defense counsel are not constitutionally required to advise defendants about consequences collateral to a plea.
People v. Reed, supra, 62 Cal.App.4th at page 602, footnote 7 parted company with a prior opinion by this court, People v. Huynh (1991) 229 Cal.App.3d 1067, which stated: “We cannot imagine a case where a defendant should not be informed by defense counsel not only about the probabilities of conviction of the charged offenses, but also about the likely amount of incarceration, if any, following conviction. Integral to this advice would be an estimate of the probable minimum term before parole eligibility.” (Id. at p. 1083.) In that case, we found a prima facie case for relief on habeas corpus when a defense attorney had misadvised his client that he would be eligible for parole in seven years when it would be at least 11 years 4 months under the facts of his case. (Id. at p. 1081.) Thus, the defendant’s habeas claim was misadvice, not merely an omission.
Accepting that an attorney should advise a defendant about the likely time of incarceration for the pending charges, we will not extend this obligation to require an attorney to advise a defendant about how a current conviction might affect a sentence in a future case after conviction of a future crime. (Cf. Lewis v. U.S. (7th Cir. 1990) 902 F.2d 576, 577; McCarthy v. U.S. (11th Cir. 2003) 320 F.3d 1230, 1234; Major v. State (2002 Fla.) 814 So.2d 424, 427; Carpenter v. State (2002 R. I.) 796 A.2d 1071, 1074.) Even to those planning a criminal career, such advice would be of little value, considering how statutory penalties and the list of serious felonies have expanded over time. Indeed, a violation of section 136.1 was added to the list along with 13 other items when Proposition 21 was enacted in March 2000. (People v. De Porceri (2003) 106 Cal.App.4th 60, 64-65, fns. 4, 5.) We conclude that McCleerey has not admitted constitutional incompetence by saying that he failed to advise defendant of the possible credit limits applicable to a future felony conviction. Therefore, defendant has not demonstrated ineffectiveness either in his motion to withdraw his plea or directly on appeal. In light of this conclusion, we need not consider whether defendant has demonstrated prejudice from McCleerey’s alleged ineffectiveness. (Cf. In re Resendiz, supra, 25 Cal.4th 230, 239, 253.) We do note that when the trial court gave defendant the advice that McCleerey allegedly did not, he assured the court that he understood and accepted the strike consequences.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.