Opinion
B225481 B233800
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JORDAN LOPEZ, Defendant and Appellant. In re JORDAN LOPEZ, on Habeas Corpus.
Law Offices of Fay Arfa and Fay Arfa for Defendant, Appellant and Petitioner. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA 070283)
APPEAL from a judgment of the Superior Court of Los Angeles County. Stephanie Sautner, Judge. Affirmed.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Stephanie Sautner, Judge. Petition denied.
Law Offices of Fay Arfa and Fay Arfa for Defendant, Appellant and Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
Jordan Lopez appeals from the judgment entered after he pleaded no contest to one count of attempted murder (§§ 187, 664), admitted a gang enhancement (§ 186.22, subd. (b)(1)(C)), and admitted that he personally and intentionally discharged a handgun (§ 12022.53, subds. (c) & (e)). As a condition of his plea, appellant was ordered to provide DNA samples pursuant to section 296 of the DNA Act (§ 295 et seq.). On appeal, he contends the DNA Act violates the Fourth Amendment of the United States Constitution. We affirm.
All statutory references herein are to the Penal Code unless otherwise indicated.
In a related petition for habeas corpus, appellant contends that (1) trial counsel rendered ineffective assistance by failing to object to the trial court's lack of jurisdiction under Welfare & Institutions Code section 707, subdivision (d); (2) he should be allowed to withdraw his plea because (a) no factual basis existed, and (b) his counsel failed to discuss potential defenses with him. We deny the petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. The Preliminary Hearing
On February 3, 2009, around noon, Joel Becerra's car was parked on Venice Boulevard near Cattaraugus. Becerra was removing items from the trunk of his car, and he noticed two young men near the corner looking at him. One of the men, later identified as Hansel Machuca, was wearing a dark-colored hoodie; the other man, later identified as appellant, was taller and not wearing a hoodie. After a few moments, the man in the hoodie, Machuca, approached Becerra. Machuca asked Becerra for his gang affiliation. Becerra responded that he did not belong to a gang, and Machuca pulled out a black gun. Becerra ran across Venice Boulevard in an attempt to escape, and he heard two shots. One went through his chest. Becerra did not get a good look at the person who shot him.
Los Angeles police detectives were aware that appellant belonged to a gang named "criminals for life." The police also had a description of the vehicle the two men had been riding in, and obtained a security video from a nearby business. The video depicted two young Hispanic males getting out of a gray compact car; one was wearing a hooded sweatshirt and the other was wearing a T-shirt and jeans. The camera showed them walking towards Venice Boulevard and approach the victim. Based on the mannerisms of Machuca and the cloud of smoke that came from an object in his hand, police surmised he had fired a handgun. Machuca placed the object in his sweatshirt and ran back to the car, where appellant was waiting, and got into the passenger side. The car drove off. The video did not show the driver of the vehicle clearly.
Detectives recognized appellant from the video based on prior contact with appellant. Police traced appellant and Machuca to a nearby dwelling on Hervey Street, where police detained them several hours after the shooting. A search of the apartment yielded a .38-caliber revolver, although the detectives were unable to forensically link the gun to the shooting. A blue sweatshirt and a pair of jeans were in the washing machine.
Appellant had a tattoo on his wrist that said "'CFL,'" signifying the "criminals for life" gang. The CFL claims a territory bounded by the 10 Freeway on the north, La Cienega Boulevard on the east, Venice Boulevard on the south, and Cattaraugus on the west. Their rival gangs are the Alsace and the West Side Locos. The police believed appellant was a member of the CFL, and that the shooting of the victim was gang motivated. Appellant's conduct in participating in the shooting benefited the gang's reputation as an entity to be feared in the community.
After the people rested, appellant did not put on any affirmative defenses. The court denied appellant's motion to dismiss and set an arraignment hearing.
2. Appellant's Plea
Appellant was charged in an information with one count of attempted willful, deliberate premeditated murder (§§ 664, 187, subd. (a)) with allegations that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a principal personally and intentionally discharged a handgun, causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), a principal personally and intentionally discharged a handgun (§ 12022.53, subds. (c) & (e)(1)), and a principal personally used a handgun (§ 12022.53, subds. (b) & (e)). The information further alleged that the defendants were minors at least 16 years of age at the time of the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)); the defendants were minors at least 14 years old at the time of the offenses, and that the offenses were committed for the benefit of and at the direction of a criminal street gang (Welf. & Inst., § 707, subd. (d)(2)(C)(ii)), and that the defendants were minors at least 14 years of age at the time of commission of the offenses (Welf. & Inst. Code, § 707, subd. (d)(2)(B)).
On May 12, 2010, appellant entered a plea of guilty to attempted murder, and admitted that he discharged a handgun, and that he committed the offense for the benefit of a criminal street gang. The trial court sentenced appellant to 29 years, consisting of nine years for the attempted murder charge, and 20 years for the gun use allegations based on appellant's admission of the gang allegation. (§§ 12022.53, subds. (c), (e); 186.22, subd. (b)(1)(C).) The trial court ordered appellant to provide DNA samples pursuant to section 296 of the DNA Act.
The trial court rejected appellant's request for a certificate of probable cause.
DISCUSSION
I. THE DNA ACT DOES NOT VIOLATE THE FOURTH AMENDMENT
Appellant argues that the trial court's requirement under section 296 that he submit blood and saliva samples violates the Fourth Amendment because section 296 mandates nonconsensual seizure from inmates without any individualized suspicion of criminal activity.
Pursuant to section 296, convicted felons must provide blood and other biological samples as part of the state's DNA databank, which was created to help law enforcement identify criminals and exonerate the innocent. Appellant acknowledges that California courts have upheld the collection of blood and saliva samples under the DNA Act. In Alfaro v. Terhune (2002) 98 Cal.App.4th 492 (Alfaro), a Third District panel found that the extraction of DNA samples from convicted felons was a "minimally intrusive methodology that can serve to avoid erroneous convictions and bring to light and rectify erroneous convictions that have occurred [and] manifestly serves a compelling public interest." (Id. at p. 506; see also People v. King (2000) 82 Cal.App.4th 1363.)
Section 296, subdivision provides in relevant part that: "The following persons shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis: [¶] . . . Any person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense, or is found not guilty by reason of insanity of any felony offense, or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense."
Nonetheless, relying on three United States Supreme Court decisions—Illinois v. Lidster (2004) 540 U.S. 419, Ferguson v. Charleston (2001) 532 U.S. 67, and Indianapolis v. Edmond (2000) 531 U.S. 32—defendant argues we should disregard long-established precedent, and asks that we evaluate California law in light of the Fourth Amendment and the Supreme Court's "special needs" cases. Aside from the fact Lidster and Edmond involved highway checkpoint cases and Ferguson involved drug testing of pregnant women, and thus are factually inapplicable here, California courts considering the applicability of those three decisions to section 296 have rejected contentions identical to those of appellant and affirmed the constitutionality of section 296. (See People v. Travis (2006) 139 Cal.App.4th 1271, 1281-1290; People v. Johnson (2006) 139 Cal.App.4th 1135, 1158-1168; People v. Adams (2004) 115 Cal.App.4th 243, 255-259; see also Alfaro, supra, 98 Cal.App.4th at pp 505-507 [rejecting constitutional challenges in action to enjoin implementation of section 295 et seq.].) The underlying rationale of those decisions rests on the diminished privacy expectations of convicted felons, combined with the minimal intrusion involved in obtaining samples and the compelling government interest served by the DNA database. (See Adams, at pp. 257-258; Alfaro, at pp. 505-507.)
In those cases, the Supreme Court recognized that suspicionless searches may, in some instances, be upheld when conducted pursuant to a program designed to serve "special needs" beyond the normal need for law enforcement. (See, e.g., Indianapolis v. Edmond, supra, 531 U.S. at pp. 37-38 [administrative searches, border checkpoints, and license/registration checks serve "special needs"].)
Nonetheless, appellant argues that DNA databases lead to searches for people carrying currently unknown genetic markers and thereby constitute an unlawful invasion of privacy. He argues he will be compelled to produce evidence because every time a crime is committed, the government will search his genetic code. We see no reason to revisit well-reasoned and compelling California authority on the issue, and accordingly reject appellant's constitutional challenge to section 296 as unmeritorious in light of Alfaro and its progeny.
II. APPELLANT'S HABEAS PETITION
A. Standard of Review
As "a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them." (People v. Duvall (1995) 9 Cal.4th 464, 474.) "To satisfy the initial burden of pleading adequate grounds for relief, an application for habeas corpus must be made by petition." (Ibid.) The petition must state fully and with particularity the facts on which relief is sought, and include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. (Ibid.) "Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing." (People v. Karis (1988) 46 Cal.3d 612, 656.) Our review consists of determining whether petitioner has made a prima facie case for relief, which entails our determining whether, if the facts alleged by petitioner are true, he or she would be entitled to relief. (Duvall, at pp. 474-475.) If no prima facie case is made, we will summarily deny the petition. On the other hand, if the allegations of the petition, taken as true, establish a claim for relief, we will issue an OSC. (Id. at p. 475.) Here, we find petitioner has not stated a prima facie claim for relief.
B. "Reasonable Cause" Under Welfare & Institutions Code Section 707, Subdivision (d)
Petitioner argues that the trial court erred in failing to make a finding there was "reasonable cause" to believe he should be tried as an adult, citing Welfare & Institutions Code section 707, subdivision (d)(4). He argues this omission deprived the court of jurisdiction, and his counsel rendered ineffective assistance by failing to raise the issue.
1. Factual Background
At the conclusion of the presentation of evidence at the preliminary hearing, defendant moved to dismiss the charges. The court denied the motion, stating in part: "There's no reason for the court to doubt the ability of [police detectives] to identify either [petitioner], who he knew, or Mr. Machuca, who he came into contact with at the [Hervey address]. [¶] . . . [¶] So what we have here is basically, essentially, [appellant and Machuca] across the street from [petitioner's] house. And by 'across the street,' I mean across Venice Boulevard [from the victim's car] parked on a side street. The two guys are there. They apparently go up and look around the corner. This is by circumstantial evidence because [the victim] says he saw two guys peeking around the corner, and they go out of sight. Apparently, the reason they go out of sight is because [petitioner] is going back to the vehicle. [¶] Mr. Machuca . . . walks up on the [victim and] issues the gang challenge, 'where are you from,' doesn't care about the answer because he already knows the answer is not that [the victim is] from the right [gang], and starts blasting. . . . [¶] The shooter, who apparently—there doesn't appear to be any question in the court's mind—[i]s Mr. Machuca, then goes back to the vehicle, and the vehicle where now has [petitioner] in it [] waiting . . . . The door opens before Mr. Machuca gets there, and he piles in the vehicle. [¶] [W]ithin minutes the police have surrounded the [Hervey address] and Mr. Machuca and [petitioner] are in the building.
Then they are arrested. And not coincidentally, . . . the blue hoodie and jeans are now in the wash because it's taken about an hour and a half to two hours before anybody comes out of that location, and that's ample time to try to dispose of any evidence that might have been existent on the clothing. [¶] So there aren't any loose ends to this case. This is a case that's connected at the beginning, in the middle, and at the end, and appears to have been done strictly for the benefit of the 'criminals for life' street gang. Now whether this was done as an initiation by which Mr. Machuca is going to prove his worth and become a full-fledged gang member, or whether it's just being done because [petitioner] wanted him to do it, it appears clear to the court that [petitioner] is involved along with Machuca in the planning of this matter [with] [petitioner] acting as an active aider and abettor sharing the intent of Mr. Machuca to try to take the life of [the victim and] that this was planned in advance. This was willful, deliberate, and premeditated, and there's just no question in the court's mind regarding any of the charges I've seen here." (Italics added.)
2. Reasonable Cause
As a general rule, persons under 18 years old who violate the criminal law are within the jurisdiction of the juvenile court, and are not prosecuted in the criminal court. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548.) However, minors may be directly prosecuted in the criminal court if they are determined to be unfit for treatment under the juvenile court law, or are accused of having committed certain serious crimes. (Welf. & Inst. Code, § 707, subd. (d); Manduley, at p. 548.)
Welfare and Institutions Code section 707 describes the process for determining a minor's fitness to be dealt with under the juvenile court law. Pursuant to Welfare and Institutions Code section 707, subdivision (d) the prosecution may elect to file an accusatory pleading against a minor directly in criminal court. Those persons who are over the age of 16, as were the defendants here, who are accused of committing crimes listed in Welfare and Institutions Code section 707, subdivision (b), may be directly prosecuted in criminal court; here, the defendants' charge of committing attempted murder qualified them for direct filing. (Welf & Inst. Code, § 707, subd. (b)(12).)
On March 7, 2000, the voters of California approved Proposition 21, known as the "Gang Violence and Juvenile Crime Protection Initiative" (Proposition 21). Section 26 of Proposition 21 was codified as section 707 of the Welfare and Institutions Code replacing the former section 707, subdivision (d) in its entirety.
In a direct filing case under Welfare and Institutions Code section 707, subdivision (d), "[i]n conjunction with the preliminary hearing as provided in [s]ection 738 of the Penal Code, the magistrate shall make a finding that reasonable cause exists to believe that the minor comes within this subdivision. If reasonable cause is not established, the criminal court shall transfer the case to the juvenile court having jurisdiction over the matter." (Welf. & Inst. Code, § 707, subd. (d)(4); see Marcus W. v. Superior Court (2002) 98 Cal.App.4th 36, 45, fn. 9 [at preliminary hearing, magistrate must determine whether "'reasonable cause exists to believe'" the minor committed a qualifying offense, and in the absence of such evidence, transfer the case to juvenile court].) Thus, subdivision (d) of Welfare and Institutions Code section 707 "limits the prosecutor's discretion to file charges in criminal court to minors of a specified age who commit enumerated crimes under certain circumstances, and at the preliminary hearing the magistrate must find reasonable cause to believe that the minor has committed such a crime under those circumstances." (Manduley v. Superior Court, supra, 27 Cal.4th at p. 570.)
Whether the case should proceed in juvenile or adult court does not involve an issue of subject matter jurisdiction; there is but one superior court in a county, although it may be divided into different departments. (In re Harris (1993) 5 Cal.4th 813, 387; People v. Cardona (2009) 177 Cal.App.4th 516, 527.)
The right to trial in the proper department of the superior court is a claim that is subject to forfeiture. This rule applies to claims that the case should have proceeded in juvenile, rather than criminal, court. "[T]he right to trial in the proper department of the superior court may be waived. '[I]t is well settled that a person who is eligible to have his or her case proceed in juvenile court may waive this right either knowingly, or by failing to timely and properly raise the matter.' [Citation.]" (In re Harris, supra, 5 Cal.4th at pp. 837-838.)
3. Ineffective Assistance
The right to effective assistance of counsel derives from the Sixth Amendment right to assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-686; see also Cal. Const., art. I, § 15.) To demonstrate ineffective assistance, appellant must show (1) counsel's conduct was deficient when measured against the standards of a reasonably competent attorney, and (2) prejudice resulting from counsel's performance "'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" (People v. Mayfield(1997) 14 Cal.4th 668, 784.) Our review of counsel's performance is deferential, and strategic choices made after a thorough investigation of the law and facts are "'virtually unchallengeable.'" (In re Cudjo (1999) 20 Cal.4th 673, 692.) "'Prejudice is shown when there is a "reasonable probability that, but for counsel's . . . errors, the result of the proceeding would have been different."'" (In re Harris, supra, 5 Cal.4th at p. 833.)
When the alleged ineffective assistance of counsel involves a guilty plea, the appellant must show that his counsel's advice was not "within the range of competence demanded of attorneys in criminal cases" and that "but for counsel's errors," the appellant would have proceeded to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 56-59; see In re Alvernaz (1992) 2 Cal.4th 924, 933-934.) We defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
4. Analysis
Here, petitioner was squarely within the ambit of Welfare and Institutions Code section 707, subdivision (d)(4) based upon the charged offense of attempted murder. (Welf. & Inst. Code, § 707, subd. (b)(12).) His counsel's failure to object to the trial court's omission of a "reasonable cause" finding on the record forfeited the issue. Nonetheless, petitioner cannot show prejudice from counsel's failure to request such a finding. The court's statements ruling on petitioner's motion to dismiss the charges establishes "reasonable cause" for petitioner to be tried in criminal court and satisfy the requirements of Welfare and Institutions Code section 707, subdivision (d)(4). The court was firmly convinced of petitioner's participation in the shooting and his culpability as an accomplice. The court found petitioner involved at every step of the way in the planning and execution of the shooting and that he possessed the shooter's motive in attacking the victim. After the trial court's recitation, we have no doubt that if defense counsel had asked for a formal "reasonable cause" finding, the court would have readily supplied it.
C. Factual Basis for Plea
Petitioner contends the trial court failed to satisfy itself that there was an adequate factual basis for his plea because his counsel stipulated to a factual basis, and the court made no further inquiry. He claims that the trial court never asked him whether he had received a copy of the police report or the information.
1. Factual Background
On his felony advisement of rights, waiver, and plea form, appellant initialed the box providing that he stipulated and agreed there was a factual basis for his plea. At his sentencing hearing, the court asked appellant's counsel whether he joined in appellant's waiver, concurred in appellant's plea, and stipulated to a factual basis for the plea based upon the police report and the preliminary hearing transcript. Counsel informed the court that he did. The court then stated, "Mr. Lopez the court has questioned you concerning your constitutional rights and the consequences of your plea, and I've reviewed this waiver and plea form and questioned you concerning your constitutional rights. [¶] . . . [¶] I find a factual basis for the plea based on the police reports and the prelim[inary] transcripts, and the court accepts your plea and your admissions and you are convicted on it."
2. Discussion
Section 1192.5 provides, in relevant part, that when accepting a plea agreement to a felony, the trial court must satisfy itself that there is a factual basis for the plea. As explained by the Supreme Court, the trial court "must garner information regarding the factual basis for the plea from either appellant or defense counsel to comply with section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate. [Citation.]" (People v. Holmes (2004) 32 Cal.4th 432, 436, 442.) A stipulated factual basis should be accompanied by a reference to police reports, probation report, or preliminary hearing transcript. (People v. Willard (2007) 154 Cal.App.4th 1329, 1334.) "A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the . . . plea. [Citations.]" (Holmes, at p. 443.)
Here, the trial court questioned defense counsel regarding the basis for the plea; counsel stipulated that there was a basis based on the police report and preliminary hearing. As Holmes instructs, a stipulated factual basis should be accompanied by a reference to police reports, probation report, or preliminary hearing transcript. We find no error.
D. Trial Counsel's Discussion of Case with Appellant
Petitioner argues that he should be allowed to withdraw his guilty plea because trial counsel failed to properly discuss his defenses with him, and thereby rendered ineffective assistance of counsel. He points to the fact that he did not fire the shots at the victim, nor was he physically with Machuca when Machuca shot the gun, and therefore the facts demonstrate that Machuca alone committed the crime. Therefore, he argues that counsel should have advised him of the potential defense that he was merely an accessory after the fact, rather than an accomplice.
1. Factual Background
In his declaration in support of his habeas corpus petition, petitioner states that he had very limited contact with his trial attorney during the proceedings, and his attorney never spoke with him about possible defenses or advised appellant that he had any defenses to the attempted murder charge based upon his lack of knowledge and intent. He contends had he known he had a viable defense, he never would have entered a guilty plea, but instead would have gone to trial. Petitioner's habeas corpus petition does not contain a declaration from his attorney.
However, appellant's felony advisement of rights, waiver, and plea form states that prior to entering his plea, appellant "had a full opportunity to discuss with [his] attorney the facts of [his] case, the elements of the charged offense and enhancements, any defenses that [he] may have, [his] constitutional rights and waiver of those rights, and the consequences of [his] plea."
2. Discussion
Section 1111 defines an accomplice as a person "who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111; People v. Sully (1991) 53 Cal.3d 1195, 1227.) Section 31 which defines principals to include "[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . ." (§ 31; People v. Fauber (1992) 2 Cal.4th 792, 833.) An accomplice must share the knowledge and intent of the principal. (People v. Boyer (2006) 38 Cal.4th 412, 467.) A mere accessory is not liable to prosecution for the identical offense, and therefore is not an accomplice. (People v. Lewis (2001) 26 Cal.4th 334, 369.) In contrast to an accomplice, an accessory is a person who, after a felony has been committed, harbors, conceals or aids a principal in the felony. (§ 32; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) Whether a person is an accomplice is a question of fact for the jury unless there can be no reasonable dispute as the facts and the inferences to be drawn therefrom. (People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271.)
Defense counsel has a legal obligation to make reasonable investigation into potentially exculpatory evidence, the possible grounds for suppression of evidence at trial, and the factual basis for potential defenses. (In re Neely (1993) 6 Cal.4th 901, 919; People v. Jones (2010) 186 Cal.App.4th 216, 238-239.) Here, the evidence at trial suggested that appellant could have been chargeable either as an accomplice (he shared both Machuca's intent to shoot the victim and had knowledge of the plan), or as an accessory (he was on the scene only to facilitate Machuca's exit from the crime). Nonetheless, appellant admits through his signature on the felony advisement of rights, waiver, and plea form that he "had a full opportunity to discuss with [his] attorney the facts of [his] case, the elements of the charged offense and enhancements, any defenses that [he] may have, [his] constitutional rights and waiver of those rights, and the consequences of [his] plea." Based on this form, and the significant absence of his trial lawyer's declaration supporting petitioner's conclusory self-serving statements in his habeas corpus petition, or the reason for the absence of a declaration from counsel, we reject petitioner's claim on the record presented.
DISPOSITION
The judgment is affirmed. The petition for habeas corpus is denied. NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.