Opinion
F072981
03-07-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN AGUILAR-HERNANDEZ, Defendant and Appellant.
Jill Marnie Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF304556)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Jill Marnie Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
During the first day of his trial, defendant Christian Aguilar-Hernandez decided to accept a plea agreement and pleaded no contest to attempted murder, assault with a deadly weapon, and giving false information to a police officer. He admitted a number of sentence enhancement allegations, including the allegations that he committed the first two offenses for the benefit of a criminal street gang. He received a determinate sentence of 29 years. He now contends the trial court abused its discretion in denying his subsequent motion to withdraw his plea.
The evidence presented at the preliminary hearing and the first day of trial supported the People's allegations that Aguilar-Hernandez was a Sureño gang member who witnessed a conflict between another Sureño and a Norteño. Afterward, Aguilar-Hernandez pursued the Norteño in his car and ran him down, causing injuries.
The motion to withdraw the plea was based on a claim that defense counsel rendered ineffective assistance by failing to interview witnesses who could have testified in support of a theory that Aguilar-Hernandez was so intoxicated that he never formed a specific intent to kill or to benefit a gang. The witnesses would also have said he had dropped out of the gang years before.
The trial court did not abuse its discretion. As we will explain, the evidence defense counsel allegedly failed to pursue would not have been strong enough to render it reasonably probable that Aguilar-Hernandez would have gone through with his trial. The trial court could reasonably find the voluntary intoxication and gang dropout defenses would have been too weak to justify risking the 40-years-to-life sentence Aguilar-Hernandez faced at trial. Had counsel investigated these defenses, it would have been his duty to advise Aguilar-Hernandez that they were likely to fail.
We will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The operative information was filed on May 15, 2015. Count 1 alleged attempted murder of a victim designated C.G. (Pen. Code, §§ 187, subd. (a), 664.) The attempted murder was alleged to be willful, deliberate, and premeditated. (§ 664, subd. (a).) Counts 2 and 3 alleged assault with a deadly weapon (§ 245, subd. (a)(1)), namely, a Honda Civic, against two victims, C.G. and C.C. In connection with counts 1, 2 and 3, the information alleged that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that Aguilar-Hernandez inflicted great bodily injury (§ 12022.7, subd. (a)). The information further alleged, in connection with those counts, that Aguilar-Hernandez had a 2012 conviction of being an active member of a criminal street gang (§ 186.22, subd. (a)); this was both a strike under the Three Strikes Law and a serious felony under section 667, subd. (a)(1). Further, Aguilar-Hernandez committed the current offenses while still on felony probation for the prior. Count 4 alleged that Aguilar-Hernandez gave false information about himself to the police. (§ 148.9, subd. (a).) Count 5 alleged he was driving without a license. (Veh. Code, § 12500, subd. (a).)
Subsequent statutory references are to the Penal Code unless otherwise noted.
The testimony presented at the preliminary hearing and the one partial day of trial indicated that Cipriano Gamboa (C.G.), a Norteño gang member, was standing on South Quince Avenue in Exeter on July 27, 2014, wearing a red hat and a red shirt (the Norteño color) and shouting. Constantino Cabrales (C.C.), a Sureño gang member, wearing blue shorts (the Sureño color), came out of his relatives' house and confronted Gamboa, who called Cabrales a "scrapa," which was a derogatory term for a Sureño. Gamboa also made a gang gesture at a green Honda Civic. Cabrales took off his shirt and was preparing to fight Gamboa when the Civic approached and hit Cabrales in the ankle with one wheel, causing an injury that required stitches. The driver got out and apologized to Cabrales, saying he had not meant to hit him. Gamboa took off on a bicycle and the green Civic drove away.
The same evening, police responded to a report of a hit and run involving a car and a bicycle a few blocks away, at H and Pine Streets. Officer Kyle Stark found Gamboa, the victim, with his face bloody and his four upper front teeth knocked out. A bicycle, tire tracks and more blood were on the sidewalk. A witness told the officer he saw a green Honda Civic drive onto the sidewalk and knock a man off a bicycle. The occupants of the Civic appeared to be Sureños. Gamboa was not cooperative with the officer.
Another deputy, Mark Frick, having heard the same report, spotted a green Civic with a broken headlight on Highway 198. He stopped it and saw that in addition to the headlight, the windshield and bumper were damaged and there was broken glass inside the car. Aguilar-Hernandez was the driver and he had passengers named Aipa See and Hugo Hernandez. Aguilar-Hernandez had no driver's license and gave the officer an incorrect date of birth. He said the damage was not recent and he did not know why the glass was there. Aguilar-Hernandez did not appear to Frick to be intoxicated. Frick did not smell alcohol or marijuana. If he had noticed signs of intoxication, he would probably have called the Highway Patrol. Frick did not arrest the three at that time. He said he was directed to release them because Gamboa was not cooperating. He did tell Aguilar-Hernandez to call someone to drive the car away, however, since he did not have a license. A female relative came and drove the car.
Stark interviewed See about two weeks later. See said he, Hernandez, and Aguilar-Hernandez were smoking marijuana when they saw a Norteño and a Sureño getting ready to fight. When the two separated, they followed the Norteño and drove onto the sidewalk to hit him. Aguilar-Hernandez owned the car and was driving. Stark also interviewed Aguilar-Hernandez, who denied any knowledge of the incident.
During the first day of trial, May 18, 2015, after several witnesses testified, defense counsel informed the court that his client had asked if there was a way to stop the trial. Counsel told him the only way to do that was to enter a plea. Defense counsel consulted with the prosecutor and an agreement was reached. For an indicated determinate sentence of 29 years, Aguilar-Hernandez agreed to plead no contest to counts 1, 3, and 4 and to admit the enhancement allegations.
The court informed Aguilar-Hernandez that the maximum sentence he faced if found guilty by the jury was 40 years four months to life. The parties stipulated that the factual basis of the plea was the evidence presented at the preliminary hearing and the evidence presented at trial so far. The court formally accepted Aguilar-Hernandez's plea and waiver of rights. The court found he waived his rights and entered his plea knowingly, intelligently and willingly.
With new counsel, Aguilar-Hernandez filed a motion to withdraw his plea on October 28, 2015. The motion argued that prior counsel provided ineffective assistance because he failed to take adequate steps to develop possible defenses.
The motion was supported by several declarations. Aguilar-Hernandez declared that his prior counsel, Marcus Olmos, visited him in jail only once and otherwise spoke to him only at the time of court appearances. He asked Olmos to contact his sister and girlfriend for contact information on witnesses he wanted Olmos to interview, but his sister and girlfriend said Olmos never returned their calls. He told Olmos he was a gang dropout. On the day of trial, he observed that Olmos was not cross-examining the prosecution's witnesses on the subject of his (Aguilar-Hernandez's) intoxication on the night in question. He told Olmos he had witnesses on this subject, but Olmos said it was too late. Aguilar-Hernandez knew intoxication could be a defense to attempted murder and wanted to testify about this, but Olmos dissuaded him from testifying.
Observing the trial, Aguilar-Hernandez felt certain he would be convicted "just based upon my attorney's lack of involvement in the case." Olmos was not going to call any witnesses or present a defense. When Aipa See was called to testify, Olmos whispered that See's testimony would result in Aguilar-Hernandez's conviction. This was when Aguilar-Hernandez concluded he had no choice and had to accept a plea agreement. Yet Olmos never told him about the rights he would be forfeiting or the consequences of the plea. When he indicated he understood these matters in response to the judge's questions, he was only parroting Olmos's whispered instructions to say yes. Further, he was "groggy from taking sleep medications" and from lack of sleep that day, had just been broken up with by his girlfriend, and felt abandoned, confused and not in his right mind.
Maria Aguilar, Aguilar-Hernandez's sister, declared that she urged Olmos to contact Diana Torres, Maricssa Mota, and Hugo Hernandez as potential defense witnesses. On the day of trial, Aguilar asked Olmos why he was not cross-examining a police witness about Aguilar-Hernandez's intoxication. Olmos walked away.
Diana Torres declared that she was Aguilar-Hernandez's girlfriend at the time of his arrest and was the mother of his child. She was the one who came to drive the car home on the night of the offenses. Maricssa Mota was with her. It was obvious that Aguilar-Hernandez was drunk or high on marijuana. His eyes were red and watery, he swayed as he stood, he did not know where he was and misstated his birth date, and he needed help getting in the car. Hernandez and See were obviously intoxicated as well. The car smelled strongly of alcohol and marijuana. Torres called Olmos and left messages several times before trial, but he never called back. When she saw him at pretrial court dates, he told her it was impossible to beat the attempted murder charge and Aguilar-Hernandez would surely be convicted if See testified. At trial, she told Olmos he should call her to testify, but Olmos said it was too late.
Mota's declaration stated that she also considered Aguilar-Hernandez to be obviously intoxicated when she and Torres went to get the car and the three men. She was Hugo Hernandez's girlfriend and could have told Olmos where to find him had Olmos contacted her.
Finally, Fabiola Hernandez, Aguilar-Hernandez's mother, declared that the night before trial, Aguilar-Hernandez told her he had not slept in days and had taken sleeping pills that made him groggy. Torres had just broken up with him and he did not seem to be in his right mind.
The declarants all testified at the hearing on the motion on November 23, 2015. When asked why he asked Olmos to stop the trial, Aguilar-Hernandez testified:
"I guess I was tired of just coming, and my ex-girlfriend just left me a few weeks ago before that, and that was the reason why I started taking Remeron, and I would think about it. It was either just take the 29 years or pretty much just suicide, you know. So that came to my head, you know, and I guess I just took the 29 years and see where that went to."
Remeron was the name of the medication Aguilar-Hernandez had been taking. He bought it from another inmate while in jail before trial.
Aguilar-Hernandez conceded that when the judge asked him if he was satisfied with Olmos's services, he said yes. He stated, however, that Olmos told him to say yes, and he felt it was too late to say he was dissatisfied.
On cross-examination, Aguilar-Hernandez testified that before trial, he did not tell Olmos he was too intoxicated to commit the crimes of which he was accused, but instead said he was in Porterville at the time and had nothing to do with those crimes. (On redirect, he said he never actually gave Olmos the alibi, but it was in his statement to the police. He further testified that the prosecution offered the 29-year deal before the preliminary hearing, but he turned it down. At his direction, Olmos made a counteroffer of 10 years, which the prosecution rejected. Aguilar-Hernandez conceded he was not too impaired at trial to observe and form impressions of Olmos's performance, and when he changed his plea, he said no after the judge asked him if he had used any medications that would affect his ability to understand the proceedings.
Torres testified that Aguilar-Hernandez was a gang dropout. He stopped participating in the gang just before their child was born in February 2012. When he was arrested, he was in the process of having his gang tattoos removed. Torres informed Olmos of this, but Olmos said it would not help. On cross-examination, Torres confirmed that Aguilar-Hernandez's prior conviction of being a member of a criminal street gang postdated the birth of their daughter. She stated that he pleaded guilty to that charge because "once you're known as a gang member in this county, even if you're a dropout, according to the state and law, you're still a gang member in their eyes."
The prosecution called Olmos as a witness. He said his usual practice was to visit a defendant to discuss the case at least twice before the preliminary hearing and two more times before trial. He "would have to assume" he followed this practice with Aguilar-Hernandez, but could say "for sure" only that he saw him at least once before trial.
Olmos had no recollection of speaking to any of Aguilar-Hernandez's family members. He did not know whether Aguilar-Hernandez had a girlfriend and did not recognize the name Diana Torres. He did not remember anyone telling him Aguilar-Hernandez was having his gang tattoos removed.
Initially, Olmos said he did not pursue a voluntary intoxication defense because he had no evidence that Aguilar-Hernandez was intoxicated. Deputy Frick had not mentioned intoxication. The only possible defense Olmos was aware of was the alibi, but there was no evidence to corroborate it and Aguilar-Hernandez himself was planning not to testify. After several questions on this topic, however, Olmos conceded he had a "vague recollection" that Aguilar-Hernandez's sister might have said Aguilar-Hernandez was intoxicated, but this did not happen until the day of trial, during a break. Olmos denied ever hearing of Aguilar-Hernandez's intoxication from Torres or Mota.
Olmos said Aguilar-Hernandez took the initiative to change his plea on the first day of trial. Olmos never pressured him to accept a plea bargain and was surprised when he decided to do so. If Aguilar-Hernandez had wanted to testify on his own behalf, Olmos would have permitted it. Aguilar-Hernandez never expressed a desire to testify.
Olmos had no difficulty communicating with Aguilar-Hernandez on the day of trial. He observed nothing indicating that Aguilar-Hernandez was under the influence of any medication.
On cross-examination, Olmos testified that he did not "hire a private investigator to investigate the case from a defense perspective" and did not consult with a gang expert. He did not remember receiving any information indicating Aguilar-Hernandez was a gang dropout. He did not intend to call any witnesses at trial.
At the beginning of her presentation and again in her closing argument, Aguilar-Hernandez's new counsel made two main points. First, Olmos's assistance was ineffective because he failed to conduct an adequate investigation of possible defenses. He was confronted by a prosecution case that would include eyewitness testimony placing Aguilar-Hernandez at the scene and driving the car when the victim was hit, as well as an expert opinion that Aguilar-Hernandez was a gang member and committed the offenses to benefit his gang. Under those circumstances, Olmos would have been obligated to interview Torres and Mota, who came to the scene and could say what they saw, even if they never had told him Aguilar-Hernandez was intoxicated on their own initiative. He also should have consulted a gang expert to determine whether anything could be presented to the jury to blunt the impact of the prosecution's expert testimony. Second, Aguilar-Hernandez was not in a proper state of mind to change his plea when he did. He changed his plea under the influence of medication, depression, and what he perceived as a desperate litigation situation created by Olmos's inaction.
In its oral ruling on the motion, the trial court found ineffective assistance of counsel was not established because Aguilar-Hernandez did not prove a different approach by Olmos would have led Aguilar-Hernandez to a different course of action. As to the gang enhancement, the court pointed out that Aguilar-Hernandez's prior conviction under section 186.22, subdivision (a), was based on conduct that took place after the birth of his child, so a claim that he became a gang dropout before then would not have been an effective defense. The court did not explain specifically why it would have been unhelpful to try to develop a defense of voluntary intoxication. Regarding Aguilar-Hernandez's state of mind when he made the decision to change his plea, the trial court relied on its own impressions from that day, when the same judge was presiding. It believed Aguilar-Hernandez made his own decision based on the risk of continuing with the trial. The sentencing proceeded immediately after the court denied the motion.
DISCUSSION
Aguilar-Hernandez maintains that the trial court abused its discretion when it denied his motion to withdraw his plea. As in the trial court, he argues now that Olmos provided ineffective assistance by failing to pursue a defense based on claims of voluntary intoxication and being a gang dropout. Further, Olmos's failure to develop these defenses, combined with other factors relevant to his state of mind on the day of trial, meant Aguilar-Hernandez's change of plea was not knowing, intelligent and voluntary.
As a threshold matter, the People argue that the appeal should be dismissed because the plea agreement included a waiver of appellate rights. Aguilar-Hernandez, citing People v. Panizzon (1996) 13 Cal.4th 68, 85, argues that the waiver cannot be construed to bar an appeal based on an error alleged to have taken place after the plea was taken, i.e., when the motion to withdraw was denied. He further argues that it would be illogical to use a term of a plea agreement to bar an appeal when the appeal is based on the argument that the agreement itself was a result of ineffective assistance of counsel. (See People v. Orozco (2010) 180 Cal.App.4th 1279, 1285.) We need not resolve the parties' dispute on this point, because we reject Aguilar-Hernandez's position on the merits, which we turn to now.
"On application of the defendant at any time before judgment ... the court may ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." (§ 1018.) The defendant must show good cause by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Good cause exists if the defendant was "operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress," but not where the defendant merely changed his mind. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) The decision on the motion is committed to the trial court's sound discretion and its denial of the motion "is final unless the defendant can show a clear abuse of that discretion." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The court abuses its discretion if its ruling rests on factual findings not supported by substantial evidence or on the application of an incorrect legal standard, or otherwise exceeds the bounds or reason. (Ibid; Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.)
The motion in this case was based on a claim of ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see People v. Hester (2000) 22 Cal.4th 290, 296.) When determining whether counsel's performance was professionally unreasonable, we must consider whether the appellate record affirmatively shows this or whether, by contrast, it is possible that considerations not appearing in the record could have justified counsel's conduct. If the situation is simply that nothing could justify the attorney's action, then we can find ineffective assistance on direct appeal; but if counsel could have had a tactical reason for acting as he or she did, and this reason does not appear in the record, then the matter should be addressed instead in habeas proceedings, where a record of counsel's reasons can be developed. (People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081 fn. 10; In re Dennis H. (2001) 88 Cal.App.4th 94, 98 & fn. 1; People v Plager (1987) 196 Cal.App.3d 1537, 1543.) Further, it is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case. If the reviewing court can resolve the ineffective assistance claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a reasonable probability that the outcome would have been different absent counsel's challenged actions or omissions—it may do so. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
There is a specific analysis of prejudice that applies when a defendant claims he entered a plea because of ineffective assistance of counsel. The defendant was prejudiced if, but for counsel's errors, the defendant "would not have entered the plea and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 59; see People v. Breslin, supra, 205 Cal.App.4th at pp. 1418-1419.)
The motion also relied on the contention that Aguilar-Hernandez was not in a proper mental state when he changed his plea. A plea of guilty or no contest is valid only if it is entered knowingly, intelligently and voluntarily. If it is not, a conviction based on it is a denial of due process of law. (McCarthy v. United States (1969) 394 U.S. 459, 466; Boykin v. Alabama (1969) 395 U.S. 238, 242-243 & fn. 5.) A showing that a defendant entered a plea because of mistake, ignorance, inadvertence, fraud or duress is grounds for withdrawal of the plea. (People v. Cruz, supra, 12 Cal.3d at p. 566; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
The trial court could reasonably find Aguilar-Hernandez did not present clear and convincing evidence of ineffective assistance of counsel. On one hand, Aguilar-Hernandez certainly has a colorable argument in saying Olmos was neglectful in failing to interview Torres and Mota, even if, as Olmos says, they did not take the initiative and contact him first. They were not eyewitnesses to the crime, but they were present shortly afterward when Aguilar-Hernandez was being released by the police. We will assume for the sake of argument that Olmos should have interviewed them, that they would have given him evidence relevant to a defense of voluntary intoxication and a claim that Aguilar-Hernandez was no longer a gang member, and that Olmos should have considered and further investigated these avenues of defense. Had Olmos done these things, however, it would still not be reasonably probable that Aguilar-Hernandez would have refrained from changing his plea.
On appeal, Aguilar-Hernandez does not press the point that Hugo Hernandez and Aipa See, who were eyewitnesses to the crimes, might have been interviewed. These witnesses might have been unavailable, of course; and See, as we know, was going to be a key witness for the prosecution. We do not believe, at any rate, that a better defensive strategy for Aguilar-Hernandez lay in that direction. --------
Voluntary intoxication can support a defense to a specific intent crime like attempted murder because it can be part of a showing that the defendant was so impaired he never formed the necessary specific intent. The relevant fact is that the defendant did not actually form the required intent; intoxication evidence is not admissible to show a lack of capacity to form an intent. (§ 29.4, subds. (a), (b) [evidence of voluntary intoxication admissible "on the issue of whether or not the defendant actually formed a required specific intent," not to "negate the capacity to form any mental states"].) A jury can properly be instructed on this defense only if there is substantial evidence that the defendant was intoxicated and the intoxication actually affected his formation of the necessary intent. (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Defenses, § 34, pp. 464-465.) For instance, in People v. Williams, supra, 16 Cal.4th at pages 677-678, there was evidence from the defendant and another witness that the defendant might have been intoxicated; but there was no evidence that the intoxication "had any effect on defendant's ability to formulate intent," so it was not error to refuse the defendant's request for a voluntary intoxication instruction.
In this case, the trial court could, under the clear and convincing evidence standard, reasonably find the testimony of Torres and Mota on Aguilar-Hernandez's intoxication would have been insufficiently helpful to make it reasonably probable that Aguilar-Hernandez would have decided to continue with the trial in reliance on a voluntary intoxication defense. The evidence showed that Aguilar-Hernandez, a Sureño, witnessed a Sureño-Norteño fight, apologized to the Sureño after accidentally hurting him, and then pursued and attacked the Norteño, driving off the road a few blocks away to hit him. When the police caught up with him, he had a story ready about the car being damaged earlier. He did not appear intoxicated to the officer. All this would have weighed heavily against a claim that he was too intoxicated to form an intent to kill the Norteño or to act on behalf of his gang. Even assuming the testimony of Torres and Mota would have been deemed sufficient to support a jury instruction on the issue (by no means a certainty), it would have been Olmos's duty to advise Aguilar-Hernandez that the defense was likely to fail, had Olmos investigated the matter. Therefore, it is not reasonably probable that Aguilar-Hernandez would have decided to go through with the trial on the strength of this strategy. So, at least, the trial court could conclude within the bounds of reason.
A similar analysis applies to the argument that Olmos should have pursued evidence that Aguilar-Hernandez was a gang dropout. The trial court's express reasoning on this point was sound. Aguilar-Hernandez was convicted of being a gang member based on conduct that happened after he allegedly dropped out. Further, the evidence showed that he witnessed a fight between rival gang members, apologized for accidentally hurting the combatant on the side he was affiliated with, and went off to attack the rival. It was plain that the jury would not likely view this as dropout behavior. Reliance on such evidence would have been ill-advised, so the court could properly find it not to be reasonably probable that Aguilar-Hernandez would have relied on it as a basis for continuing the trial.
Finally, we disagree with Aguilar-Hernandez's contention that the trial court abused its discretion when it found his change of plea was knowing, voluntary and intelligent. First, the court could reasonably find that Olmos's failure to develop voluntary intoxication and gang dropout claims did not deprive Aguilar-Hernandez of information that would have led him to a different decision. As discussed above, the record supported the trial court's conclusion that these issues would not have been the basis of a sound defense. Second, the court could reasonably find, after weighing all the evidence presented to it, including its own observation of Aguilar-Hernandez when he changed his plea, that he failed to show by clear and convincing evidence that he had acted under mistake, ignorance, inadvertence, fraud or duress, and that he instead made a rational decision when confronted with a high risk of conviction.
Aguilar-Hernandez argues that the trial court "was laboring under the mistaken belief that [he] was required to demonstrate he would have been able to achieve a more favorable sentence had he proceeded with the trial," as opposed to demonstrating only that he would not have changed his plea. We disagree. The court said Aguilar-Hernandez did not show "that there would have been a different result." It did not explicitly say he failed to show he would not have changed his plea, but its remarks are consistent with that view. We will not assume the court applied the wrong standard when its statements were consistent with the right one. (People v. Giordano (2007) 42 Cal.4th 644, 666 [judgment presumed correct on appeal and error must be affirmatively shown].)
Finally, in his reply brief, Aguilar-Hernandez supplies the following quotation, which originated in People v. McGarvy (1943) 61 Cal.App.2d 557:
"[T]he withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice would be subserved by permitting the defendant to plead not guilty instead; and it has been held that the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change from guilty to not guilty." (People v. McGarvy, supra, 61 Cal.App.2d at p. 564.)
This way of framing the issue does not alter our conclusion, for two reasons. First, the quotation is a somewhat slanted take on the rule (at least partially acknowledged by the court in McGarvy) that the denial of a motion to withdraw a plea should be affirmed on appeal if the trial court could, within the bounds of reason, find that good cause was not established by clear and convincing evidence. Second, it seems to us that affirmance is the correct result even under this version of the rule. It is, indeed, not in the least evident that the ends of justice would be served by reversal here. The record shows a defendant who reasonably—with feelings of distress, no doubt, but reasonably—became convinced that the risk of trial was too great and the alternative, while still extremely serious, was preferable. It was not reasonably probable that he would have thought otherwise had his counsel investigated and advised on the weak defense theories he relied on in the motion. The ends of justice would not be served by an order allowing him to encounter that risk after all. So, at least, the trial court could conclude, under the clear and convincing evidence standard, without exceeding the bounds of reason, which is all we are to consider on appeal.
In summary, this case is very much like a situation the United States Supreme Court described in Hill v. Lockhart, supra, 474 U.S. 52, a case that, like this one, involved a plea allegedly entered because of ineffective assistance of counsel:
"In many guilty plea cases, the 'prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer [(7th Cir. 1984)] 742 F.2d 371
... ('It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received')." (Hill v. Lockhart, supra, 474 U.S. at p. 59.)
Olmos's failure to pursue the intoxication and dropout theories did not prejudice Aguilar-Hernandez because, under the circumstances, they were manifestly poor theories.
DISPOSITION
The judgment is affirmed.