Opinion
F041208.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL LEMOS LACHINO, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Aaron R. Maguire, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant, Miguel Lemos Lachino, pled no contest to lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and misdemeanor spousal battery (Pen. Code, § 243, subd. (e)) and admitted two probation violations. On May 28, 2002, the court sentenced Lachino to the middle term of six years on the child molestation count and concurrent terms on the remaining offenses. On appeal, Lachino contends he was denied the effective assistance of counsel in presenting his motion to withdraw his plea. We will affirm.
FACTS
On January 17, 2002, the district attorney filed an information charging Lachino with the continuous sexual abuse of a minor and lewd and lascivious conduct with a child 14 or 15 years of age while being 10 years older than the child. On March 12, 2002, Lachino, while represented by appointed counsel, pled no contest to an amended charge of committing a lewd act with a child under the age of 14 in exchange for a six-year term. During the change of plea proceedings, when asked if anyone had promised him anything in exchange for his plea, Lachino stated, "Just other than my wife was coming to show up to say I wasnt guilty."
On May 7, 2002, retained counsel substituted in for appointed counsel. On May 28, 2002, Lachino filed a motion to withdraw his plea apparently alleging that extrinsic factors affected Lachinos decision to plead no contest. The motion had attached to it a declaration by Lachino wherein he declared that at the time he entered his no contest plea he did not clearly understand what was going on and he "emphatically" declared that he was not guilty of the charges.
At Lachinos sentencing hearing on July 16, 2002, defense counsel argued that Lachino expressed his intent to fight the charges through his statements that his wife was going to show up to say he was not guilty and that he was innocent. Further, although defense counsel did not understand why Lachino did not tell his former defense counsel that he wanted to contest the charges, defense counsel believed it occurred because Lachinos "extensive" alcohol problem may have affected Lachinos ability to understand what went on during the change of plea proceedings.
In denying Lachinos motion, the court noted that prior to taking his plea it asked Lachino if he had taken any drugs or alcohol and Lachino said that he had not.
DISCUSSION
Lachino contends he was denied the effective assistance of counsel in presenting his motion to withdraw his plea because defense counsel did not argue as a ground for withdrawing his plea that Lachino was innocent. Respondent contends this contention is not cognizable on appeal because Lachino did not obtain a certificate of probable cause. We will reject Lachinos contention on the merits.
In People v. Osorio (1987) 194 Cal.App.3d 183, this court held that the defendant was not required to file a certificate of probable cause in order to challenge on appeal his defense counsels failure to submit a motion to withdraw plea on the defendants behalf. In so holding we reasoned:
"In the present case, of course, no motion to withdraw the plea was ever filed. If the motion had been filed and denied, it appears from the record that a section 1237.5 certificate would have been required because the plea itself ultimately would be placed in issue. The present appeal, however, attacks the failure of counsel to file the motion in the first instance. The relief requested does not require that we pass upon the validity of the guilty plea. Accordingly, the appeal addresses only the events occurring after the plea and the requirements of section 1237.5 are not applicable." (Id. at p. 187.)
Lachino contends Osorio is controlling and that he did not need to obtain a certificate of probable cause because he is not challenging the denial of a motion to withdraw plea. Instead, he is challenging only his defense counsels failure to include certain grounds as a basis for such a motion, which is analogous to the failure of the defense counsel in Osorio to file any motion at all.
We will assume, without deciding, that under Osorio, Lachino was not required to obtain a certificate of probable cause in order to pursue the instant issue on appeal and we will reject his ineffective assistance of counsel claim.
"The general rule is that the burden of proof necessary to establish good cause in a motion to withdraw a guilty plea is by clear and convincing evidence. [Citations.] [¶] `Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion. [Citations.] [& para;] To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendants free judgment include inadvertence, fraud or duress. [Citations.] However, `[a] plea may not be withdrawn simply because the defendant has changed his mind. [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.)
Here, although Lachino contended that he intended to fight the charges and entered a no contest plea by mistake, he did not present any evidence in support of this claim. Accordingly, we find that the court did not abuse its discretion when it denied his motion to withdraw his plea.
We also reject Lachinos ineffective assistance of counsel claim. " `[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citation.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations] [Citation.]" (In re Avena (1996) 12 Cal.4th 694, 721.)
Factual innocence is not one of the listed statutory grounds upon which a defendant may base a motion to withdraw plea. Nevertheless, we see no reason why, in the interest of justice, a court should not be able to consider a defendants showing of factual innocence in ruling on a motion to withdraw plea. However, in considering the strength of the defendants showing of factual innocence, the court should also examine a defendants ability to provide a reasonable explanation why he pled guilty or no contest to a charge or charges he claimed to be innocent of.
Here, Lachino did not provide a reasonable explanation why he would plead guilty to such a serious charge as child molestation if he were truly innocent. More importantly, however, Lachino has not explained what evidence, besides his self-serving assertion of innocence, his defense counsel could have presented to convince the court that he was innocent. Accordingly, we find that he has failed to show that his counsel provided him with ineffective assistance in presenting his motion to withdraw his plea.
Nor has Lachino shown how he was prejudiced by defense counsels failure to specifically mention in his argument that Lachino claimed he was innocent. In considering Lachinos motion to withdraw his plea, the court was aware of Lachinos assertion of innocence because his statement to that effect was contained in the declaration attached to his motion. However, without any evidence in support of this assertion, Lachino was unlikely to convince the court of his innocence even if defense counsel argued this as a basis for Lachinos motion to withdraw his plea. Thus, we further find that Lachino has not shown that he was prejudiced by his defense counsels failure to argue Lachinos alleged innocence as a basis for his motion to withdraw his plea. Accordingly, we conclude that Lachino has not carried his burden of showing that he was denied the effective assistance of counsel.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.