Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City and County Super. Ct. No. 199597
Reardon, J.
After a jury convicted him of forcible oral copulation, sexual penetration with a foreign object, residential burglary, false imprisonment and assault with a deadly weapon, appellant Roberto Azuara was sentenced to an indeterminate term of 25 years to life in state prison. (See Pen. Code, §§ 236, 245, subd. (a)(1), 288a, subd. (c)(2), 289, subd. (a)(1), 459.) He appeals, contending that his trial counsel was ineffective for giving him inaccurate advice about a plea agreement that would have included a maximum 10-year sentence. We affirm the judgment.
All statutory references are to the Penal Code.
I. FACTS
On August 8, 2006, a male intruder—later identified as appellant Roberto Azuara—entered the San Francisco home of R.G. He held a knife. The man forcibly orally copulated R.G. and penetrated her vagina with his finger before she escaped from him by fleeing from her home.
In August 2006, Azuara was charged by information with forcible oral copulation, sexual penetration with a foreign object, first degree residential burglary, false imprisonment and assault with a deadly weapon resulting in great bodily injury. (See §§ 236, 245, subd. (a)(1), 288a, subd. (c)(2), 289, subd. (a)(1), 459.) It was alleged that the two sexual offenses were committed during a burglary. (See former § 667.61, subds. (d)(4), (e)(2) [as amended by Stats. 1998, ch. 936, § 9].) These two offenses and the assault charge were allegedly committed with Azuara’s personal use of a knife. (See § 12022.3; former §§ 667.61, subd. (e)(4), 1192.7, subd. (c)(23) [as amended by Stats. 2002, ch. 606, § 3].)
Azuara entered a plea of not guilty to all charges and denied all allegations. Before the preliminary hearing, the public defender advised Azuara that he faced a possible life term in this case, based on the attorney’s assessment that the maximum punishment was 15 years to life in prison. The People offered Azuara a three-year sentence if he would plead guilty, but the public defender advised his client against accepting the offer, given that Azuara was young and had no criminal record. Azuara rejected the offer. He was held to answer on all charges and trial began on the resulting information in November 2006. When the People were unable to proceed, the case was dismissed, with the understanding that the prosecution would refile the same charges. (See § 1385.)
After a second preliminary hearing, Azuara was held to answer for these charges a second time. In December 2006, he was formally charged in a second information with forcible oral copulation, sexual penetration with a foreign object, first degree residential burglary, false imprisonment and assault with a deadly weapon resulting in great bodily injury. (See §§ 236, 245, subd. (a)(1), 288a, subd. (c)(2), 289, subd. (a)(1), 459.) Again, the information alleged that the sexual offenses were committed during a burglary, and that the commission of these offenses and the assault charge involved the personal use of a knife. (See § 12022.3; former §§ 667.61, subds. (d)(4), (e)(2), (4), 1192.7, subd. (c)(23).) Again, Azuara pled not guilty to all charges and denied all allegations.
This was the second filed information against Azuara. The first was dismissed in November 2006 after the People were not ready to proceed. (See § 1385.)
Before the second trial began, the People offered a 10-year maximum sentence if Azuara pled guilty. Again, Azuara rejected the prosecution’s offer, opting instead to go to trial. He testified at trial, denying that he entered R.G.’s residence on the day of the attack. The defense was one of mistaken identification.
In March 2007, the jury found Azuara guilty of all charges. It found true allegations that Azuara committed oral copulation and sexual penetration with a foreign object during the commission of a burglary and used a deadly weapon during the commission of these offenses. It found untrue allegations that he committed burglary with the intent to commit forcible oral copulation. The jury concluded that Azuara committed first degree burglary and that he personally used a knife in the commission of assault with a deadly weapon.
We note that on the verdict form finding Azuara guilty of sexual penetration with a foreign object, the jurors also found untrue an allegation that he committed burglary with the intent to commit a different offense—that of forcible oral copulation. The jury’s other two findings on sexual penetration with a foreign object—that it was committed during a burglary and with the personal use of a knife—were sufficient, without more, to qualify Azuara for an indeterminate sentence of 25 years to life for that offense. (See former § 667.61, subds. (a), (e)(2), (4).)
Azuara moved for a new trial on ineffective assistance of counsel grounds. (See Cal. Const., art. I, § 15.) He argued that the public defender misadvised him that the maximum possible sentence he could receive at trial if found guilty on all charges was 15 years. Based on this advice, Azuara rejected the prosecution’s offer that would have resulted in a maximum 10-year determinate term. In fact, Azuara faced a possible indeterminate term of 50 years to life in state prison—a term of 25 years to life for each of the two sexual offenses if the related burglary and knife use allegations were found to be true. (See former § 667.61, subds. (a), (e)(2), (4).) Azuara’s motion for new trial was supported by declarations from himself and from the public defender who represented him at trial. The People opposed the motion, supported by a sworn declaration from the prosecutor.
New counsel was appointed to represent Azuara after the jury’s verdict.
Azuara made his declaration under penalty of perjury. The public defender did not, nor did he date the declaration. At the hearing on the motion for new trial, the public defender testified under oath that the statements in his affidavit were true and correct, under penalty of perjury.
At the hearing on the motion, the public defender testified that when he evaluated the possible sentence that Azuara could receive, he mistakenly believed that the allegations exposed his client to a term of 15 years to life. Based on this conclusion, he told Azuara that the maximum term he could receive was “15 to life.” He told the trial court that he had explained to his client what this sentence would mean—that if convicted, Azuara would serve a minimum of 15 years and a maximum of life in prison. The public defender testified that he had explained to Azuara that he faced life imprisonment and that his client understood this. The public defender also told the trial court that he told Azuara—a young man with no criminal history—that he found the 10-year offer to be unreasonable. Azuara rejected the offer, telling the public defender that he did not want to spend any time in prison at all.
The information that the public defender annotated with the possible sentences was the August 2006 information that was later dismissed. The December 2006 information that formed the basis of Azuara’s conviction was substantially the same.
After hearing the evidence, the trial court denied the motion for new trial, finding no ineffective assistance of counsel, apparently because there was insufficient evidence of prejudice. Azuara was sentenced to 25 years to life in state prison—concurrent terms of 25 years to life each for forcible oral copulation and sexual penetration with a foreign object. Sentences for the other three offenses were stayed to avoid multiple punishment.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
Azuara contends that he received ineffective assistance of counsel during plea negotiations. He reasons that the public defender’s incorrect advice during these negotiations caused him to reject a 10-year determinate sentence offer in a case in which—unbeknownst to Azuara—he faced a possible sentence of 50 years to life in prison. He challenges the trial court’s denial of his motion for new trial based on this claim.
On review of the trial court’s order denying a motion for new trial, we conduct an independent review of the record to determine whether Azuara has established by a preponderance of substantial, credible evidence that the public defender’s performance was deficient and that he was prejudiced by any deficiency. (In re Alvernaz (1992) 2 Cal.4th 924, 946 [habeas corpus] (Alvernaz).) Initially, we determine the facts to be applied on appeal. Azuara asserts that the public defender told him that he faced a maximum determinate term of 15 years in prison. However, the public defender testified that he told Azuara that he faced a maximum indeterminate term of 15 years to life. The trial court’s ruling on the motion for new trial implies that it found the public defender’s evidence more credible than the other evidence offered by Azuara. That evidence also persuades us that Azuara was, in fact, advised that he faced a maximum indeterminate life term.
One more contested fact remains to be resolved. On appeal, Azuara argues that he misunderstood the public defender and believed that he faced only a 15-year determinate term. In his declaration in support of his motion for new trial, he did not state that he misunderstood the advice that he was given, but that the public defender told him that he only faced a maximum term of 15 years. Thus, Azuara’s declaration does not support his appellate claim that he misunderstood the meaning of the advice that the public defender gave him. Even if it did, our independent review of the public defender’s contrary testimony satisfies us that Azuara understood that he faced a life term before he decided to go to trial. We apply these resolved facts to the legal question before us on appeal.
B. Right to Effective Assistance of Counsel
A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686; People v. Maury (2003) 30 Cal.4th 342, 389, cert. den. sub nom. Maury v. California (2004) 540 U.S. 1117; see U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) The plea stage is a critical stage in the criminal process at which the defendant is entitled to the effective assistance of counsel. (Alvernaz, supra, 2 Cal.4th at p. 933.) To establish a claim of incompetence of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at pp. 686-688, 694-695; People v. Maury, supra, 30 Cal.4th at p. 389; see People v. Benavides (2005) 35 Cal.4th 69, 92-93; Alvernaz, supra, 2 Cal.4th at pp. 936-937.)
When a defendant is misadvised by counsel, rejects a guilty plea based on that erroneous advice, and is later convicted at trial, he or she may assert a claim of ineffective assistance of counsel, even if the defendant receives a fair trial. (Alvernaz, supra, 2 Cal.4th at pp. 934-936.) To prevail, a defendant must establish incompetence by a preponderance of evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) A lack of prejudice is fatal to a claim of ineffective assistance of counsel. (See Alvernaz, supra, 2 Cal.4th at p. 946; People v. Geddes (1991) 1 Cal.App.4th 448, 454; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851.)
C. Prejudice
In this matter, we find credible and substantial evidence that the public defender actually advised Azuara that he faced an indeterminate term of 15 years to life in state prison. In fact, Azuara faced an indeterminate term of 50 years to life in state prison if he was convicted of both sex offenses with findings that these offenses were committed during the commission of a burglary involving the personal use of a deadly weapon. (See former § 667.61, subds. (a), (e)(2), (4).) As the public defender’s assessment of the facts conveyed to Azuara on the minimum term he faced was admittedly incorrect, the key question before us is whether that erroneous advice prejudiced Azuara. (See People v. Geddes, supra, 1 Cal.App.4th at p. 454.)
In this situation, a defendant establishes prejudice resulting from erroneous advice if he or she shows a reasonable probability that if properly advised by counsel, he or she would have accepted the plea offer which would have been approved by the trial court. (Alvernaz, supra, 2 Cal.4th at p. 937.) We are charged to closely scrutinize whether Azuara has established a reasonable probability that, with proper advice, he would have accepted the plea offer. (See id. at p. 938.) We consider whether the public defender actually and accurately communicated the offer to Azuara; the actual advice given by the public defender; the disparity between the terms of the plea offer and the consequences of going to trial; and whether Azuara indicated that he was amenable to a negotiated plea. (Ibid.)
The California Supreme Court has ruled that a defendant’s self-serving statement that, with competent advice, he or she would have accepted the plea offer is insufficient in and of itself to sustain the defendant’s burden of proving prejudice. This claim must be corroborated independently by objective evidence, to prevent “an unchecked flow of easily fabricated claims.” (Alvernaz, supra, 2 Cal.4th at p. 938.)
We are satisfied that Azuara has not demonstrated prejudice. Two key factors support our conclusion—that the public defender accurately communicated the maximum possible term of life in prison to Azuara and that the defendant was not amenable to a negotiated plea. (See, e.g., Alvernaz, supra, 2 Cal.4th at p. 938.) The actual disparity between the correct sentence calculation and the advice that Azuara focused on the minimum possible term. The maximum term in both circumstances was the same—an indeterminate life sentence. It stands to reason that the maximum possible term is what matters most when a defendant considers a plea offer.
Told that he faced a minimum term of 15 years in prison and possible indeterminate life term in prison, Azuara opted to go to trial rather than accept a plea agreement that would have resulted in a 10-year prison term because he did not want to spend any time in state prison. At trial, he testified in his own defense, under oath, asserting his innocence. This trial stance detracts from the credibility of Azuara’s hindsight claim that the rejected plea offer would have been accepted if the public defender had accurately advised him of the consequences of the charges against him. (See Alvernaz, supra, 2 Cal.4th at pp. 940, 946.)
Azuara has not shown by a preponderance of credible evidence that if he had been correctly advised that he faced an indeterminate life term of 50 years to life, that he would have accepted the plea agreement. Thus, he has not established the essential prejudice element of his ineffective assistance of counsel claim. (See Alvernaz, supra, 2 Cal.4th at pp. 936-941.) After conducting an independent review of the motion for new trial, we conclude that the trial court did not err in denying Azuara’s motion for new trial grounded in a claim of ineffective assistance of counsel.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.