Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JW06-6134
SIMONS, J.
Michael S. appeals from the juvenile court’s order denying his motion to withdraw his admission to one count of robbery. Appellant contends the court abused its discretion in not granting his motion, because his admission resulted from ineffective assistance of counsel. We disagree with his contention and affirm.
Background
On July 6, 2005, the San Mateo County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602) against appellant, alleging one felony count of second degree robbery (Pen. Code, § 212.5, subd. (c)).
The probation officer’s recommendation for an order of detention, which was based on the Daly City Police Department report, stated that in July 2005, police officers responded to a report of a robbery at Century Theaters. The victim told the officers that, while he was standing in line to purchase tickets, a group of seven to eight people, including appellant, “taunted him.” Appellant then “took [the victim’s] red baseball hat and the group fled the scene.” The victim reported being “scared at the time his hat was taken.” Appellant told the police that the victim and the victim’s friends were “talking ‘mess’ to him,” and appellant took the hat out of frustration and gave it to one of his friends.
The matter was scheduled for a jurisdictional hearing on October 14, 2005. At the October 14 hearing, appellant was represented by Kathryn Yolken. The district attorney requested a continuance, and Yolken opposed the motion stating that she was prepared to go to trial. The juvenile court denied the continuance and, for procedural reasons, dismissed the petition against appellant with the understanding that it would be refiled. Two weeks later, on October 28, 2005, the district attorney refiled the petition.
On February 2, 2006, at the jurisdictional hearing on the refiled petition, appellant advised the court he would admit the charge against him, and the court advised appellant of the constitutional rights he would be waiving by his admission. Appellant, again represented by Yolken, stated he understood all of the court’s advisements and admitted the felony count of second degree robbery. The court sustained the petition and, noting that appellant resided in San Francisco, transferred the matter there for disposition.
On June 5, 2006, appellant, represented by new counsel, filed a motion to withdraw the admission (Pen. Code, § 1018). Appellant argued that Yolken had provided ineffective assistance of counsel, and he would not have admitted the robbery allegation if counsel had been effective. The district attorney opposed the motion.
In support of his motion, appellant filed a declaration stating that Yolken “hardly ever showed up in court” and missed three or four hearings; only interviewed appellant for a few minutes before a court hearing and never met with appellant in her office; never discussed the strengths or weaknesses of appellant’s case with him; never explained the terms of the district attorney’s offer or the probable consequences of proceeding to trial; never told appellant he could face the same disposition whether he admitted the offense or lost at trial; never told appellant she had any witnesses for trial, even though appellant’s girlfriend had witnessed the incident; and never told appellant that “it was possible at the trial to have the court find something less than a charge of robbery.” Appellant stated that if Yolken had explained to him the strengths and weaknesses of his case and that the court could sustain a lesser included offense at trial, he would not have admitted the robbery allegation.
On September 29, 2006, the juvenile court held a hearing on appellant’s motion to withdraw his admission. Yolken testified that she had been a member of the California bar since 1982, and had worked with the private defender program in San Mateo County since 1989. She disputed appellant’s claim that she had missed three or four hearings, stating that she had missed two: one because of a family emergency and another, the arraignment on the refiled petition, because appellant was not her client at the time. She acknowledged that she had never asked appellant to come to her office to discuss the case, but stated that they had time to discuss appellant’s case at length in a private interview room at the courthouse while they waited for appellant’s case to be called. After the petition was refiled, Yolken did not meet with appellant again until the February hearing.
Yolken was appointed as appellant’s counsel after the initial petition was filed. Sometime after the petition was refiled, Yolken was reappointed as appellant’s counsel.
Yolken testified that she explained to appellant his Boykin-Tahl rights and that the robbery offense could be used as a strike, and appellant appeared to understand her explanation. She attempted to negotiate an alternative charge for appellant with the district attorney, but was unsuccessful. At the February 2, 2006 jurisdictional hearing, appellant’s two codefendants admitted reduced charges of receiving stolen property. (Pen. Code, § 496.)
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Yolken further testified that she had been prepared to go to trial on October 14, 2005, and nothing material had changed in the case between the dismissal of the first petition and the February 2, 2006 hearing on the refiled petition. At the October 14, 2005 trial, she had planned to argue that appellant had not used force or fear in taking the hat. Yolken prepared for the trial by reading the police reports and researching changes in the law on the force or fear required for a robbery conviction. She did not subpoena any witnesses on behalf of appellant, but would have relied on the district attorney’s witnesses. She did not recall if she interviewed those witnesses on the morning of the trial; she did not interview the victim or others present with appellant at the scene. She did not hire an investigator, although she visited the scene and verified that there were no surveillance tapes.
Yolken stated that she discussed her theory of the case with appellant, and explained to him that at trial she would argue for the lesser included offense of grand theft of a person instead of robbery. She explained to appellant that she was trying to negotiate a lesser included offense from the district attorney, although she did not recall whether she also explained to appellant that the court could sustain a lesser included offense at trial. She discussed the strengths and weaknesses of the case with appellant. She informed appellant of several potential weaknesses: appellant had admitted to taking the hat, the victim and other witnesses were planning to testify that they were afraid, and appellant and his codefendants were bigger than the victim. Yolken did not think appellant had a very good case, given the fact that the victim and the victim’s friends were prepared to testify that they were afraid. She told appellant that she thought the court would sustain the robbery allegation.
Yolken testified that in her experience, the “down side” of going to trial in San Mateo was that the San Mateo Juvenile Court might then retain jurisdiction over the case through disposition, and impose a harsher disposition than a San Francisco court would. She acknowledged that appellant would face the same maximum term of confinement whether he admitted the charge or went to trial. She also acknowledged that the San Mateo court had the discretion to retain jurisdiction even if appellant admitted the allegation.
At the close of the hearing, the juvenile court denied appellant’s motion to withdraw his admission. The court then issued a dispositional order establishing wardship, ordering random drug testing, placing appellant on home supervision, imposing a curfew, and prohibiting certain gang activities and affiliations.
This timely appeal followed.
Discussion
Appellant contends the juvenile court erred in denying his motion to withdraw his admission. We disagree.
Under Penal Code section 1018, “[o]n application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, 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. . . . This section shall be liberally construed to effect these objects and to promote justice.”
“The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’ [Citation.]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) The court’s order will not be reversed “ ‘if there is substantial evidence or a reasonable inference to be drawn from it which supports the order. Where two conflicting inferences may be drawn from the evidence it is our duty to adopt the one supporting the challenged order.’ [Citation.]” (People v. Harvey (1984) 151 Cal.App.3d 660, 667.)
I. Ineffective Assistance of Counsel
Appellant contends that Yolken was unreasonable in failing to inform him of the alternative courses of action open to him, in particular, the fact that if he contested the robbery allegation, the court could sustain a lesser included offense such as grand theft from a person. Appellant further argues that Yolken acted unreasonably in failing to affirmatively recommend that he contest the robbery charge, given the “distinct likelihood [that the court would sustain a lesser included offense] and the minimal, if any, benefits of entering an admission.” Appellant claims that Yolken’s deficient advice caused him to enter an admission he otherwise would not have made.
To demonstrate ineffective assistance of counsel, “a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
“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 Alvernaz (1992) 2 Cal.4th 924, 934.) “[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. [Citation.]” (Ibid.)
“To meet the required standard of professionalism with regard to whether a plea agreement should be accepted, [counsel is] obligated to provide [the defendant] with competent advice as to all aspects of the case, including a candid evaluation of the case.” (In re Vargas (2000) 83 Cal.App.4th 1125, 1139.) “The defendant can be expected to rely on counsel’s independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.]” (In re Alvernaz, supra, 2 Cal.4th at p. 933.) However, it is well settled that “trial tactics are ordinarily within the sound discretion of trial counsel. [Citation.]” (People v. Wright (1990) 52 Cal.3d 367, 412.)
We conclude the record contains substantial evidence that Yolken adequately informed appellant of the alternative avenues open to him, including the possibility that the court could sustain a lesser included offense at trial. At the hearing on appellant’s motion to withdraw his admission, Yolken testified that although she never asked appellant to come to her office to discuss the case, they had time to discuss appellant’s case at length in a private interview room at the courthouse. She discussed the strengths and weaknesses of the case with appellant. Yolken explained her theory of the case with appellant at the pretrial, as well as at the October 14, 2005 trial setting and the February 2, 2006 trial. She informed appellant that at trial, she would argue for the lesser included offense of grand theft of a person instead of robbery. She also told appellant that she was trying to negotiate a lesser included offense from the district attorney.
Appellant points to contrary evidence, noting that Yolken testified at one point that she could not recall whether she had explained to appellant that the court could sustain a lesser included offense at trial, and that appellant stated in his declaration that Yolken never told him “that it was possible at the trial to have the court find something less than a charge of robbery.” However, in reviewing the trial court’s denial of appellant’s motion to withdraw his admission, “ ‘[w]here two conflicting inferences may be drawn from the evidence it is our duty to adopt the one supporting the challenged order.’ [Citation.]” (People v. Harvey, supra, 151 Cal.App.3d at p. 667.) Substantial evidence supports the conclusion that Yolken adequately informed appellant of his alternatives and the possible consequences of proceeding to trial.
In addition, we conclude that Yolken’s decision not to advise appellant to contest the robbery allegation was not objectively unreasonable. Yolken offered two reasonable justifications for this decision; each survives appellant’s challenges. First, she testified that she did not think appellant had a very good case, and thought the robbery allegation would be sustained at trial. She noted several weaknesses in appellant’s case: appellant had admitted to taking the hat, the victim and other witnesses were planning to testify that they were afraid, and appellant and his codefendants were bigger than the victim. Appellant questions Yolken’s evaluation of the case, arguing that the probation report does not indicate that appellant took the victim’s hat by means of force or fear, and therefore the district attorney would have been unable to establish the requisite force or fear for a robbery conviction. (People v. Prieto (1993) 15 Cal.App.4th 210, 215 [discussing force or fear element].) However, appellant’s assertion that the court would likely have sustained a lesser included offense if appellant had contested the robbery charge is merely speculation. Yolken’s evaluation of appellant’s case, based on her research into the law on force or fear and her reading of the police reports, was not objectively unreasonable.
Second, Yolken testified that in her experience, there was a “down side” to contesting the charge in San Mateo: the San Mateo Juvenile Court might then retain jurisdiction over the case through disposition and impose a harsher disposition than a San Francisco court would. Appellant again challenges Yolken’s assessment, arguing that the San Mateo Juvenile Court could have retained jurisdiction over the case through disposition even if appellant had admitted the allegation, and noting that appellant would have faced the same maximum term of confinement whether his disposition occurred in San Francisco or San Mateo. However, Yolken concluded, based on her experience, that if appellant contested the robbery allegation, it was more likely that the San Mateo Juvenile Court would retain jurisdiction, and impose a harsher sentence than the San Francisco court. We cannot hold that these conclusions were objectively unreasonable. We defer to the court’s discretion in finding reasonable Yolken’s tactical decision not to recommend that appellant contest the robbery allegation.
II. Abuse of Discretion Under Penal Code Section 1018
Appellant contends that the juvenile court abused its discretion in denying appellant’s motion, because permitting appellant to withdraw his admission would serve the ends of justice.
Penal Code section 1018 states that the court may grant a defendant’s motion to withdraw “for a good cause shown,” and “[t]his section shall be liberally construed to effect these objects and to promote justice.” “ ‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea,’ but must be shown by ‘clear and convincing evidence.’ [Citation.]” (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506.) Ineffective assistance of counsel may constitute good cause for withdrawal of a guilty plea. (In re Alvernaz, supra, 2 Cal.4th at p. 934.)
As discussed above, appellant has not demonstrated that he received ineffective assistance of counsel. And appellant has not put forth evidence of any other factor that would constitute good cause for withdrawal. Therefore, the court did not abuse its discretion in denying appellant’s motion to withdraw his admission.
Disposition
The court’s order denying appellant’s motion to withdraw his admission is affirmed.
We concur.JONES, P .J. GEMELLO, J.