Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. A565040 & A565066, Dorothy L. Shubin, Judge.
Sherman & Sherman and Victor Sherman for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Anthony Quick (Quick) appeals from the judgment entered following his plea of guilty to first degree burglary (Pen. Code, § 459) and receiving stolen property (§ 496). The trial court sentenced Quick to four years, eight months in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcripts of the preliminary hearings.
a. The burglary.
At approximately 7:40 a.m. on September 14, 1983, Cynthia Svonkin (Svonkin) left her home at 1415 South Second Street in Alhambra to go to work. She had shut and locked all the doors and windows in the house. When she returned home at approximately 3:40 p.m., Svonkin saw that her jewelry box and a camera were on the floor in the dining room, plants on a windowsill had been knocked over, a nearby suitcase had been stepped on and several drawers were open. Svonkin immediately telephoned the police. When she later checked, it did not appear that any of her property was missing.
At approximately 3:40 p.m., Alhambra Police Officer William Groves (Groves) received a call indicating that a man in red shorts had been “seen entering the driveway side of the residence [at] 1415 South Second.” Since he was only approximately four blocks from Svonkin’s residence when he received the call, the officer arrived at the house at approximately 3:42 p.m. After having a conversation with a woman standing on the sidewalk in front of the house just south of Svonkin’s home, Groves walked down the driveway on the south side of Svonkin’s house. From that vantage point, Groves saw Quick “standing in the window inside the house, looking out.” Quick, who apparently did not see the officer, raised the window, caused the screen to fall to the ground, then started to climb out. Groves approached Quick, told him to “stay right where he was,” then asked him if he lived at the house. Quick, who was wearing only a pair of red shorts, told the officer that he lived there with his mother who was at work and that he had entered the house through the side door, using his key. However, when Groves asked Quick for the address of the house, Quick gave him the wrong house number. When Groves asked Quick for the key, Quick told the officer it was inside, on the dining room table. At this point another officer, Officer Engler (Engler), arrived.
After directing him to come out of the house, the two officers continued to question Quick, who told them that his name was “ ‘Tony Gallo.’ ” When Quick insisted that his identification and key to the house were inside, Engler, followed by Quick, entered the house through the open window. Groves, who remained outside, watched what was going on through the window. According to Groves, the house was “a mess.” Items were strewn about on the table and the floor. Groves overheard Quick tell Engler that he could not find his keys. When Quick could produce neither a key to the house nor any identification, Engler placed him under arrest for burglary.
b. Receiving stolen property.
On August 19, 1983, Ernest Waite lived at 1108 South Fourth Street in Alhambra. After locking all the doors and windows, Waite and his family left their home and did not return until approximately 11:00 p.m. the following day. When Waite entered his bedroom, he saw that “things [had been] thrown all over the room.” It was then that Waite noticed that the back door had been “broken open” and a number of items had been taken.
Later, at the Alhambra Police Station, Waite identified a number of items which had been taken from his home. At the preliminary hearing, Waite identified a “ ‘nugget gold ring’ ” as one of the items. Waite had not given Quick permission to take or possess the ring.
Tony Chinnavaso (Chinnavaso) owns a coin and pawn shop called the American Eagle Coin Company. As records of his business transactions, Chinnavaso uses a form called a “Pawnbroker Secondhand Dealer Report,” copies of which dealers are required to file with the police department. On August 29, 1983, Quick, who had been there before, came into Chinnavaso’s shop to sell a number of items which Chinnavaso listed on a dealer report. One of the items Quick sold to Chinnavaso was Waite’s nugget gold ring.
On September 21, 1983, a police officer came to Chinnavaso’s shop and asked to see the nugget gold ring. The officer then showed to Chinnavaso a photographic line-up. Chinnavaso identified a photograph of Quick as that of the man who had sold him the ring.
On September 14, 1983, Alhambra Police Officer Frank Grasso (Grasso) was assigned to investigate burglaries and cases involving the receipt of stolen property. In reviewing copies of “Pawnbroker Secondhand Dealer Reports,” Grasso determined a nugget gold ring had been sold to the American Eagle Coin Company. Grasso decided to investigate. After having Waite identify the ring as his, Grasso informed a patrol officer that there was sufficient probable cause to arrest Quick.
2. Procedural history.
By two separate informations, the district attorney charged Quick with one count of residential burglary and one count of receiving stolen property. On January 9, 1984, Quick, who was being represented by the Public Defender Department, entered pleas of not guilty to the charges. The public defender was relieved and private counsel was retained as Quick’s counsel of record on March 6, 1984.
On April 27, 1984, Quick changed his pleas to guilty. The probation and sentencing hearing was set for June 18, 1984 and Quick was released on bail.
On June 18, 1984, Quick failed to appear for sentencing. Quick’s bail was forfeited and a bench warrant was issued for his arrest.
Quick next appeared on April 30, 2007. The trial court recalled the bench warrant, set bail at “no bail,” and ordered a supplemental probation report.
At proceedings held on June 7, 2007, Quick made a motion to enforce his plea agreement. According to counsel for Quick, in 1984 the trial court had indicated in an unrecorded discussion with counsel at side bar that, if Quick could provide the court with a letter from the victim stating she did not want Quick to go to prison because nothing had been taken from her home and Quick had been only 20 years old at the time of the offense, the trial court would grant Quick probation. Counsel indicated Quick was told by his attorney “that [during a conversation at side bar] the [trial] court stated unequivocally, if the defense attorney did bring in a letter, that [Quick], in fact, would be given probation. . . . And it was only based on the conversation between Mr. Quick, and his attorney, that [Quick] entered a plea of guilty. He would not have entered the plea if he had not been told by his attorney . . . [that] the court did say to his attorney in an off-the-record conversation that [it] would grant [Quick] probation.”
After counsel referred to a side bar discussion in the present proceedings during which the trial court had indicated that its intent was to sentence Quick to prison, the following colloquy occurred: “The Court: My primary point at side bar is, I think, the transcript shows that there was not an agreement by the court unequivocally to grant probation. The court said the court would strongly consider it upon hearing from the victim. That, of course, never happened. [¶] [Counsel for Quick]: Well, I understand that. But let me assume for the sake of argument, that the court would have granted probation[.] [C]ertainly that was the indication if the letter had been brought in. [¶] Now we supplied the letter even though it is 20 years later. . . . [¶] The Court: Except the factors have changed. You have a judge that he is no longer before, and you add in the factor that [in the previous 24 years Quick committed numerous frauds, and that] completely shift[s] all the factors the court [has] to consider. [¶] [Counsel for Quick]: But in People [v.] Cruz [(1988) 44 Cal.3d 1247], you can’t consider those factors. But even if you could, the fact is that the defendant did not enter a free and voluntary plea then because he was told by his attorney that he was going to be granted probation.”
Counsel, after agreeing with the trial court that circumstances had changed, then urged the court to allow Quick to withdraw his plea and proceed to trial. In response, the court stated, “In looking at the transcript, there [are] a number of instances, where it’s clear it states on the record the defendant is there. Where it’s clear that the court is not committing to probation. And the defendant says he understands that. For example, on page 3, the court is saying if you were to come back with the letter from the victim, the court–that would be given great weight. The court would probably place [you on] probation. There is no commitment as to probation. There is an indication that the court would strongly consider that by saying you would probably get probation. And he says do you understand this. [¶] ‘Yes, your honor.’ States probation probably with some jail [time]. Then there is a later point . . . [where] the deputy district attorney says, ‘You understand the sentencing in this matter is completely up to the court. No one can make any promises for the court. The court is going to be getting a supplemental probation report or have a hearing, and at that time [it] will decide what the sentence in this matter [will be]. If you are sent to state prison[,] . . . afterwards you will be released on parole.’ [¶] Again, he is advised that probation is not necessarily going to occur in this case. The deputy D.A. continues, . . . ‘If you are granted probation, this would be for a period of time. . . .’ And again, it is an ‘if’ probation is granted.”
After further argument, counsel for Quick summed up his position. Counsel stated, “[Quick’s counsel] told him, I talked to the judge at side bar. If you bring in the letter, you are going to get probation. If you can’t bring in the letter, then it’s looking like you are going to go to prison. That is the state of the record. You can’t use against [Quick] what happened subsequent to him entering the plea. Or if you can, if you fear that it’s an unfair sentence, let him withdraw the plea.”
In support of his motion to enforce the “plea agreement” or, in the alternative, to withdraw his plea, Quick submitted an affidavit in which he states that he and his attorney were in “clear agreement that [he] would only change [his] plea if [he] would not be sentenced to state prison.” In addition, Quick declared: “I remember that when my case was called, Mr. Wright [my counsel] went to the bench and spoke to the judge about the burglary victim, Mrs. Donkin [sic], who was willing to come to court to ask that I be sentenced to probation. When he returned from the bench, Mr. Wright assured me that, when I was sentenced, I would not be sent to state prison.” Quick continued, “Although the judge told me that the usual sentence for burglary is state prison, the judge also said that there were unusual factors in this case that included my age, my lack of a record and the fact that Mrs. Donkin [sic] did not want me to go to prison. It was clear to me that the judge intended to give me a sentence of probation because of these unusual factors. [¶] I would not have changed my plea and would not have pleaded guilty to burglary and receipt of stolen property if I believed that I could be sent to prison.”
After hearing argument from the District Attorney, the trial court stated, “[T]he judge said [he] would consider the letter, and whether or not I agree with that analysis is not for me to consider. But I disagree with [Quick’s counsel] on the point of whether the judge made a commitment. I think he said [he] would strongly consider it. That didn’t happen. [Quick] didn’t return. And there wasn’t a commitment that if you bring a letter I will definitely impose the sentence. [¶] The transcript advised him of all the consequences, so I don’t find there is any plea agreement to enforce. It was an open plea to the court. I don’t find there is any basis for the plea to be withdrawn. I find that he made it–it was a voluntary plea, a knowing and intelligent advisement given about the various consequences. Even the defense attorney at the end of the transcript talks about state prison. [¶] So I . . . think . . . the record belies Mr. Quick’s declaration that he didn’t know of all the possibilities. [¶] So, . . . the motion [to withdraw the plea] is respectfully denied.”
According to the transcript of the proceedings held on July 7, 2007, counsel submitted a letter from “Hopkins Vodkin” dated May 30, 2007.
After hearing argument from the parties regarding sentencing, the trial court imposed the middle term of four years in prison for Quick’s conviction of burglary. For his conviction of receiving stolen property, the trial court imposed a consecutive sentence of one-third the mid-term, or eight months. In total, Quick was sentenced to four years, eight months in prison.
Quick filed a timely notice of appeal and was granted a certificate of probable cause (§ 1237.5).
CONTENTIONS
Quick contends (1) the trial court erred in denying his motion to withdraw his plea and (2) the trial court erred when it relied upon his failure to appear for his originally scheduled sentencing to impose a state prison term.
DISCUSSION
1. The trial court properly denied Quick’s motion to withdraw his plea.
a. Quick cannot show that his counsel was ineffective.
Quick initially asserts that, apart from what the trial court actually told counsel at side bar, counsel assured Quick that, if he entered a plea of guilty, he would without doubt be granted probation. Quick argues that “[i]f the [trial] court did not actually assure counsel that [Quick] would be granted probation upon production of the victim[’s] letter, then counsel lied to [Quick] as to a critically material issue at a crucial stage in the proceedings. [¶] Surely, no standard of ‘reasonableness’ would permit counsel’s outright, bald-faced lies to [Quick] regarding the trial court’s side bar comments. It is rightfully incomprehensible that any ‘prevailing professional norms’ might tolerate such a fundamental corruption of counsel’s duties as the deceit contemplated here would constitute.” Quick argues that, given that his counsel was ineffective in this regard, Quick must be allowed to withdraw his plea.
“Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] ‘It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.’ [Citations.]” (In re Resendiz (2001) 25 Cal.4th 230, 239.)
“To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” (In re Resendiz, supra, 25 Cal.4th at p. 239; In re Sixto (1989) 48 Cal.3d 1247, 1257.)
It has been determined that “the mere advice or assurances by a private attorney will not vitiate a plea entered in reliance thereon, unless such representations of the attorney amount to an unqualified factual representation (which is untrue) ‘that the state or a responsible officer thereof, such as a judge of competent authority . . . has entered into a bargain purporting to commit the state to give the defendant a reward, in the form of immunity or a lesser punishment than he might otherwise receive, in exchange for a plea of guilty, where such representation is apparently substantially corroborated by acts or statements of a responsible state officer . . . . [¶] . . . Mere advice and persuasion or the expression of matters of opinion by his own attorney will not suffice to vitiate the plea. Neither will unwarranted or even willful[] false statements of factual matters by his attorney suffice. The private attorney is selected by the party and is his agent.’ ” (People v. Smith (1953) 120 Cal.App.2d 531, 534-535.)
We can conceive of no plausible reason why counsel would have lied to Quick regarding the trial court’s representations. Moreover, the only evidence that counsel misrepresented the trial court’s intentions is Quick’s declaration. A defendant’s self-serving statement, without some corroboration, is insufficient to warrant relief. (In re Alvernaz (1992) 2 Cal.4th 924, 945; see People v. Smith, supra, 120 Cal.App.2d at p. 535.) Quick has failed to show that his trial counsel’s performance was deficient and the trial court properly denied Quick’s motion to withdraw his plea on that basis.
b. Quick cannot show that the trial court agreed to grant him probation.
Quick asserts, “[i]f [his] counsel accurately represented the court’s off-the-record assurances, [his] plea was induced by the court and he should thus be permitted to withdraw his plea.” We note that, as the present court indicated, a careful reading of the record belies Quick’s claim the trial court promised to grant him probation.
The present court noted that “the transcript shows that there was not an agreement . . . unequivocally to grant probation. The [previous] court said [it] would strongly consider it upon hearing from the victim. That, of course, never happened.” Later in the proceedings, the present court pointed out instances where Quick was in the courtroom and heard the prior trial court make it clear that a grant of probation was not guaranteed. During one instance, where it is clear the court is not committing to probation, Quick indicates he understands. When the prior trial court referred to the letter from the victim, it indicated the letter would be given “great weight,” but would not assure that Quick would be granted probation. Still later in the prior proceedings, the deputy district attorney informed Quick that “ ‘the sentencing in this matter is completely up to the court. No one can make any promises for the court. The court is going to be getting a supplemental probation report or have a hearing, and at that time [it] will decide what the sentence in this matter [will be]. If you are sent to state prison[,] . . . afterwards you will be released on parole.’ ” The deputy district attorney then indicated that if Quick were granted probation, it would be for a period of time. As the present court noted, at the prior proceedings the district attorney qualified his statement, indicating that it was “ ‘if’ probation [was] granted.” (Italics added.) Finally, still later in the prior proceedings, after a side bar discussion, defense counsel stated, “ ‘Whatever the court does, we know is going to be time in state prison or county time. Ready to go in June 18th.’ ”
Nowhere on the record did the prior trial court state that, if Quick entered a plea of guilty after producing a letter from the victim, he would be guaranteed a grant of probation. In view of this record, the trial court properly denied Quick’s motion to withdraw his plea.
2. The trial court did not improperly consider Quick’s failure to appear for sentencing.
Twice during the proceedings, the trial court referred to Quick’s failure to appear for sentencing. The first instance occurred after defense counsel asserted that the original trial judge had indicated that, if Quick obtained a letter from the victim, Quick would be granted probation. In response, the trial court stated, “Except the factors have changed. You have a judge that he is no longer before, and you add in the factor that I won’t be seeing you for another 24 years, and I will commit numerous frauds in between that, would completely shift all the factors the court was to consider.” In response, defense counsel stated, “But in People [v.] Cruz [(1988) 44 Cal.3d 1247], you can’t consider those factors. But even if you could, the fact is that the defendant did not enter a free and voluntary plea then because he was told by his attorney that he was going to be granted probation.”
The trial court’s second reference to Quick’s failure to appear occurred after defense counsel indicated that the original trial court had stated it would consider the letter from the victim. In response, the present trial court stated, “I agree with you, the judge said I would consider the letter, and whether or not I agree with that analysis is not for me to consider. But I disagree with you on the point of whether the judge made a commitment. I think he said I would strongly consider it. That didn’t happen. He didn’t return. And there wasn’t a commitment that if you bring a letter I will definitely impose the sentence. [¶] The transcript advised him of all the consequences, so I don’t find there is any plea agreement to enforce. It was an open plea to the court. I don’t find there is any basis for the plea to be withdrawn.”
Relying on People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), Quick asserts that in imposing sentence, the trial court was prohibited from considering the fact that he had failed to appear for sentencing. However, the court’s decision in Cruz is not applicable. In Cruz, the defendant pled guilty to possession of heroin pursuant to a negotiated plea agreement in May 1985. “Under the plea bargain, defendant was to receive a maximum five years’ probation and up to the ‘county lid’ of one year in county jail, or the ‘low base’ sentence of sixteen months in state prison without probation, at defendant’s option. In addition, a second count against him . . . was to be dismissed.” (Id. at p. 1249.) The defendant then failed to appear for sentencing. At the sentencing hearing held in February 1986, “the trial court announced its intention not to abide by the plea bargain. Defendant moved to withdraw his guilty plea. The court denied the motion and sentenced defendant to two years in state prison . . . .” (Ibid.) The Cruz court determined that a defendant who fails to appear for sentencing under a plea bargain does not lose the protection of section 1192.5 and must, should the trial court refuse to impose the agreed upon sentence, be allowed to withdraw his or her plea. (Cruz, at pp. 1253-1254.)
Section 1192.5 provides in relevant part: “Where [a] plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.”
In the present case, there was no negotiated plea agreement. As noted in the previous section, nowhere on the record did the prior trial court state that, if Quick entered a plea of guilty after providing a letter from the victim, a grant of probation was guaranteed. In any event, it is unclear whether the trial court considered Quick’s flight when it imposed the prison term. Although the court mentioned that Quick had failed to appear, it did so initially in the context of a discussion regarding the presentation of a letter from the victim some 24 years after the original proceeding. The trial court again referred to Quick’s flight when discussing the fact that the original trial court never had the opportunity to consider the letter because Quick “didn’t return” for sentencing. We conclude, in view of the fact there was no negotiated plea bargain, and the court’s references to Quick’s flight were clearly not used as a factor in aggravation but merely to explain why it never had the opportunity to consider the victim’s letter, the trial court committed no error.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J. KITCHING, J.