Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH-39819
Margulies, J.
Defendant Jose Maria Santana appeals a judgment based upon his plea of guilty to two counts of forcible rape while acting in concert (Pen. Code, §§ 264.1, 261, subd. (a)(2), 262, subd. (a)(2)) and one count of rape by a foreign object while acting in concert (§§ 289, subd. (a), 264.1). After the court denied defendant’s motion to withdraw his plea and his motion for reconsideration, it imposed the negotiated sentence of 12 years in prison.
Further statutory references are to the Penal Code.
The notice of appeal was filed one day late. This court, however, granted defendant’s motion to file a late notice of appeal.
Defendant contends the court abused its discretion in denying his motion to withdraw the plea. He argues he should have been allowed to withdraw the plea because his counsel pressured defendant to accept the plea after counsel failed adequately to prepare for trial and to investigate his defense of consent, and failed to ascertain the whereabouts of the complaining witness and her willingness to testify at trial. Defendant also contends that, on the day the plea was negotiated, the district attorney falsely represented that the complaining witness was available to testify. We find no abuse of discretion and affirm the judgment.
I. FACTS
A. The Offenses
We need not summarize the facts of the offenses in great detail because they are only marginally relevant to our review of the denial of the motion to withdraw the plea. Briefly, on May 5, 2005, Jane Doe, who was then 14 years old, spent an afternoon in an abandoned house with defendant, who was then 16 years old, defendant’s 18-year-old brother Jaime, and T.J. and several other juveniles. After the other female juveniles left to find a restroom, Doe also tried to leave because she was uncomfortable being alone with defendant and the other males. Defendant blocked the doorway and pushed her down. His brother Jaime restrained her while defendant raped her. Defendant and Jaime then held the victim down while T.J. raped her, despite Doe’s protest to T.J. that he was like a cousin. Jaime then digitally penetrated her, but the attack ceased when the other girls returned.
B. The Plea
Defendant was 18 by the time the case came on for trial. His brother Jaime had already been tried and convicted on three counts of rape. Jaime was sentenced to 19 years in prison. Defendant was represented by Spencer Strellis. On the day set for trial, defendant entered a plea of guilty to all counts as charged, in exchange for a 12-year prison term. Defendant’s counsel and the court fully advised him of his constitutional rights, and the three strikes, habitual sex offender, and serious and violent felony consequences of the plea. He was also advised of the sex registration requirements, the parole consequences and many other consequences of the plea.
C. Motion to Withdraw the Plea
A short while after entering the plea, defendant learned that the case against T.J. had been dismissed. He hired new counsel to investigate and file a motion to withdraw the plea.
At the hearing on the motion to withdraw the plea, defendant testified that he was 16 at the time of the offenses. He was originally represented by Todd Bequette. Bequette advised defendant that his case could be moved from juvenile court to adult court, but Bequette would try to fight it. Defendant told Bequette he was innocent and the sex he had with Doe was consensual. He also gave Bequette some information about his criminal and social history. The hearing that resulted in defendant being remanded to the adult court was very short, and Bequette did not call any witnesses on his behalf.
Defendant met with his new appointed counsel, Spencer Strellis, several times between the preliminary hearing and the trial. In the meantime, defendant’s brother Jaime was tried, convicted and sentenced to 19 years in prison. Defendant attended his brother’s sentencing hearing.
According to defendant, shortly before the date set for trial, Strellis assured him that he was prepared for trial. Yet, on the day of the trial, Strellis urged defendant to accept an offer of 12 years. He told defendant “he couldn’t try this case, he couldn’t beat it, he couldn’t win.” Strellis stressed that defendant faced 27 years in state prison. Defendant accepted the offer despite his innocence because Strellis made him believe there was no way to win the case. Strellis reminded defendant what had happened in his brother’s trial and sentencing, and that, unlike his brother’s case, the prosecutor had DNA evidence against defendant. He told defendant that, as his attorney and as a father, he did not want to see defendant do 27 years. Defendant felt “pinned to a wall.”
Strellis testified that, before the trial date, he met with defendant, and discussed the facts of his case and reviewed the preliminary hearing transcript. The defense they discussed was “[i]n a very general sense, consent.” Strellis reviewed the preliminary hearing transcript, and discussed with defendant the possibility that several of the female witnesses might testify favorably to him. He also talked with the lawyer for defendant’s brother and hired an investigator.
As the trial date approached Strellis heard “street rumors” that Jane Doe was not available to testify. He asked Danielle Hilton, the prosecutor, and she represented that Doe was ready to testify. Strellis did not ask for Doe’s address or send out an investigator to verify this assertion, because he had no reason to doubt Hilton. He stated, “It would have been stupid to send an investigator out to establish a fact” he already believed to be true.
Strellis acknowledged that he strongly encouraged defendant to accept the plea offer. He did not state that defendant would lose, but did tell him he could lose, and if he lost, “he could end up doing worse than his brother, and might very well end up doing worse... in terms of sentencing.” He also told defendant “there was no particular reason to believe that his case would go better than his brother’s.”
After entry of the plea, Strellis learned that the juvenile case involving T.J. had been dismissed. Strellis was not happy when he heard that the dismissal was based upon the unavailability of Jane Doe. When defendant told Strellis he wanted to withdraw his plea, Strellis advised him to find another lawyer to represent him.
The prosecutor, Hilton, testified that she conducted the preliminary hearing examinations and prosecuted defendant’s brother. Hilton did not call Doe to testify at the preliminary hearing because, in her judgment, it would have been too emotionally difficult for any rape victim to testify at two preliminary examinations and three separate trials. Doe resided in the Bay Area in June 2006, and testified at Jaime’s trial without being under subpoena. After Jaime’s trial, Hilton stayed in touch with Doe, and spoke to her over 20 times in preparation for defendant’s trial. Although Doe moved out of state, Hilton continued to speak to her by telephone. She spoke with Doe on October 16, 2006, the day before defendant’s trial. Hilton was ready to proceed for trial the next day. Doe was not under subpoena because she was willing to come testify, and Hilton did not believe a subpoena was necessary. Hilton had discussed flight arrangements with Doe and Doe’s father. If Doe’s father was unable to get time off from work, the plan was for Hilton’s investigator to fly to meet Doe and accompany her on the flight back to the Bay Area. Hilton did not tell Strellis that Doe had moved out of state because he did not ask where Doe was living and she did not believe this was relevant information.
When Hilton made the offer of 12 years to defendant she was not concerned about whether Doe would testify. Hilton had previously made an offer of a longer prison term. She reduced the length of the offered prison term based upon a variety of factors. These included: (1) Jaime had given a statement to the police that the prosecutor believed she could prove false, whereas defendant had not; (2) if defendant pleaded guilty, the victim would be relieved of the emotional burden of testifying at three trials; and (3) Hilton’s prior offer only required defendant to plead guilty to two counts, whereas the offer on the day set for trial required him to plead guilty to three counts.
Hilton also prosecuted the minor T.J. His trial was set to go in November 2006. On the day of trial Hilton was not prepared to go forward because Doe was no longer willing to testify. Doe had been very excited when she learned that defendant pleaded guilty, but her relationship with T.J. was different. Her father and T.J.’s grandmother were very close. Doe lived with her father, who believed T.J.’s grandmother’s assertion that T.J. was innocent. Doe told Hilton she was under extreme pressure not to testify. In the days preceding the trial date, Hilton spoke with Doe several times. Doe was torn between not letting T.J. “get away with it” and concern about the stress of testifying. Her attitude toward the trial changed daily. Doe had not expressed similar reservations about testifying against defendant. She was aware that defendant was attempting to withdraw the plea, and remained willing to testify against him.
D. The Court’s Findings and Ruling on the Motion to Withdraw the Plea
The court denied defendant’s motion to withdraw the plea. It found Hilton’s representation that she was ready for trial “was an accurate representation and in no way misled or prejudiced the defense.” It also found defendant failed to demonstrate that Strellis had been ineffective by pressuring defendant to accept the plea offer, or by failing to ascertain the complaining witness’s address, or by failing to verify her availability and willingness to testify at trial. The court stated that it disagreed “completely with [defendant’s] evaluation of [Strellis’s] effectiveness.”
The court further concluded that defendant had failed to present sufficient evidence that Mr. Bequette, the defense counsel who represented him at the hearing to determine whether he should be treated as a juvenile or tried as an adult, was ineffective. Defendant does not renew this contention in his opening or reply brief, and this court will not consider an issue raised for the first time in oral argument. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226.)
II. ANALYSIS
At any time before entry of judgment, the court may allow a defendant to withdraw a guilty plea upon a showing of good cause. (§ 1018.) “ ‘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 defendant’s free judgment include inadvertence, fraud or duress. [Citations.]’ ” (People v. Weaver (2004) 118 Cal.App.4th 131, 145–146.) “The state’s suppression of favorable evidence is [also] an extrinsic cause which may overcome the exercise of free judgment.” (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.)
“A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound discretion of the trial court” ’ and is final unless the defendant can show a clear abuse of that discretion. [Citations.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Defendant contends the court abused its discretion in denying his motion. He contends his plea was involuntary because it was based in part upon the district attorney’s false or misleading representation that the witness was available and willing to testify. Defendant also argues the plea was not voluntary because he was only 18 at the time of the plea, and relatively inexperienced with the criminal justice system. He asserts Strellis pressured him to accept the plea by threatening that, if he did not accept it, he would be found guilty and sentenced to 27 years in prison. He further contends Strellis advised him to accept the plea without adequately investigating the defense of consent, and without taking any steps to verify the district attorney’s representation that the complaining witness was available and willing to testify at trial.
The Attorney General argues defendant is barred from seeking review of the court ruling on the motion to withdraw the guilty plea because defendant waived his right to appeal as part of his guilty plea. We reach the merits because the validity of the waiver of the right to appeal is inextricably linked to his contention that the plea was not voluntary because he was coerced and received ineffective assistance of counsel. (See, e.g., Waley v. Johnston (1942) 316 U.S. 101, 104.)
We first address defendant’s contention that the court should have granted his motion to withdraw based upon the prosecutor’s false representation that the witness was available and willing to testify, or the failure fully to disclose details that might have raised doubts about the likelihood that the complaining witness would testify. We accept, arguendo only, defendant’s legal proposition that failure to disclose that the complaining witness might not appear to testify is analogous to a failure to disclose potentially exculpatory evidence, and may constitute “an extrinsic cause which may overcome the exercise of free judgment.” (People v. Ramirez, supra, 141 Cal.App.4th at p. 1506.) Nonetheless, his argument is unavailing because the court resolved against defendant the underlying factual question whether the prosecutor was truthful when she said the complaining witness was available and willing to testify at defendant’s trial. As the reviewing court we must accept the trial court’s factual determinations if they are supported by substantial evidence. (People v. Fairbank, supra, 16 Cal.4th at p. 1254.)
We address this argument first because the factual assertion that the prosecutor made false or misleading statements regarding the availability of Doe also is an essential premise of some of defendant’s arguments regarding Strellis’s performance and defendant’s claim of prejudice.
The court stated it relied upon “Ms. Hilton’s testimony that she had [a] continued relationship with this complaining witness, that the witness had testified at a previous trial, that she was in constant communication, telephonic communication with the witness, and the witness has not expressed” any unwillingness to testify. The court declined to infer that Doe had been unwilling to testify at defendant’s trial based upon the evidence that she was unwilling to testify against T.J. It explicitly rejected “[t]he notion that you can equate the witness’s [un]willingness to testify against another juvenile charged in this matter who has a relationship with her father and family members and for whom she’s been pressured apparently by the family not to testify” with readiness to testify against defendant. Hilton’s testimony constitutes substantial evidence in support of the court’s finding that on the day the plea was entered, Hilton truthfully stated the complaining witness was available and willing to testify against defendant. (People v. Vegas (2005) 130 Cal.App.4th 183, 190 [testimony of a single witness credited by the trier of fact constitutes substantial evidence].)
Defendant urges this court, nonetheless, to find Hilton’s representation was false or misleading. He argues conflicting evidence and other factual circumstances, such as that the witness was not under subpoena and was living out of state, rendered Hilton’s assertion that the victim was ready to testify “speculative.” He also questions the credibility of Hilton’s explanation for why she did not disclose that the witness was not under subpoena and living out of state. We, as the reviewing court, may not reweigh the evidence, redetermine the credibility of the witness, resolve conflicts, or draw inferences contrary to those drawn by the trier of fact. (People v. Johnson (1980) 26 Cal.3d 557, 576–578.) The court expressly credited Hilton’s testimony. We conclude substantial evidence supports the court’s finding that the prosecutor accurately represented the witness was available and willing to testify at trial. Therefore, defendant’s assertion that Hilton made false or misleading statements about Doe’s availability for trial was not a factor warranting withdrawal of the guilty plea.
Defendant also argues his plea was involuntary because Strellis rendered ineffective assistance by failing to ascertain whether the victim was under subpoena, to ask for her address, or to make any other attempt to verify Hilton’s representation. Our conclusion, ante, that substantial evidence supports the trial court’s finding that Hilton was neither untruthful nor misleading disposes of this argument. In light of the court’s finding that Hilton was telling the truth, none of these omissions could have resulted in any prejudice. Even if counsel had attempted to take any of the steps defendant now suggests to verify the victim was willing and available to testify, counsel would have learned only Hilton was telling the truth, and his advice to accept the plea would still have been the same.
The foregoing analysis disposes of all but defendant’s contention that he should have been allowed to withdraw his plea because his defense counsel’s advice to accept the plea was incompetent. Specifically, defendant argues Strellis’s advice was incompetent because (1) he did not adequately investigate or assess the strength of the consent defense, (2) he did not consider factual differences between defendant’s case and Jaime’s case that might have led to a more favorable outcome, and (3) he pressured defendant to enter the plea by telling him he would be found guilty and could be sentenced to 27 years.
To prevail on his contention that his guilty plea entered on advice of counsel was involuntary because counsel was ineffective, defendant must demonstrate that counsel’s advice fell outside the range of professional competence. Defendant must also demonstrate that he was prejudiced by his counsel’s performance, i.e., that had counsel rendered effective assistance, defendant would not have accepted the plea. “[P]ertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.” (In re Resendiz (2001) 25 Cal.4th 230, 253.) The record amply supports the court’s conclusion that Strellis’s explanation of the terms and consequences of the plea evaluations, the risks and probable consequences of going to trial, and advice that defendant should accept the plea, did not fall outside the range of reasonable competence.
With respect to trial preparation and investigation of the defense of consent, Strellis testified that he met with defendant several times, discussed the defense of consent, read the preliminary hearing transcript, spoke with counsel for defendant’s brother, and hired an investigator. Even if, as defendant now argues, Doe’s unstable family situation provided a motive to lie, counsel’s assessment that the consent defense was not particularly strong was supported by the fact that Doe promptly reported the crimes to her guardian and to the police, and another jury had found Doe sufficiently credible to convict defendant’s brother.
It was also reasonable for Strellis to advise defendant, in the context of considering the plea, that despite some factual differences, it was not likely his outcome would be any better than his brother’s and could be worse. Although defendant was younger, other facts, including that defendant was the person who blocked Doe from leaving and was the first to rape her, suggested defendant was not merely following his brother’s lead, and could be deemed more culpable.
Although it is not clear whether defendant relies upon it as evidence of inadequate representation or as evidence of pressure overcoming his free will, defendant also cites evidence that he expressed unhappiness with Strellis’s representation by asking another private attorney, Fred Remer, to represent him. Remer appeared on the date set for trial, but for reasons defendant did not understand, and the record does not explain, Remer did not substitute in. Remer did, however, tell defendant he should listen to Strellis. At best the foregoing is circumstantial evidence of defendant’s dissatisfaction with Strellis. Defendant’s subjective opinion does not, of course, establish that the representation Strellis provided was objectively incompetent. To the extent defendant may be arguing that not having the attorney of his choice was a form of pressure overcoming his will, the court would have been within its discretion to find this was not grounds for withdrawing the plea as long as the representation he actually received was competent.
On the question whether defense counsel pressured defendant to accept the plea by means that overcame the exercise of defendant’s free will, the court credited Strellis’s testimony that he merely strongly encouraged defendant to accept the plea, because in Strellis’s judgment there was no reason to believe the outcome in terms of conviction and sentencing would be more favorable than his brother received. The plea offer of 12 years was substantially less than the maximum exposure of 27 years, and was seven years less than Jaime’s sentence. The pressure defendant experienced was simply the inevitable pressure of weighing the risk of going to trial on serious felony charges and facing a potentially very long prison term, or accepting the certainty of the plea bargain to a lesser term. This stress is inherent in the process of plea negotiation and is not the type of pressure that results in an involuntary act, nor is it a “ ‘ “factor overreaching defendant’s free and clear judgment.” ’ ” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1209.)
Defense counsel and the court also fully advised defendant of his constitutional rights, and the three strikes, habitual sex offender and serious and violent felony consequences of the plea, and the sex registration requirements, the parole consequences and many other consequences of the plea. The court found his plea and waiver of rights to be knowing and voluntary.
We conclude that the court, in light of the totality of these circumstances, was within its discretion to find defendant had failed to demonstrate good cause, and to deny the motion to withdraw the plea.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.