Opinion
G044220
04-23-2012
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP MARQUEZ BLANCO, Defendant and Appellant.
Dennis P. O'Connell for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 07NF3222)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.
Dennis P. O'Connell for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Phillip Marquez Blanco pleaded guilty to oral copulation with a minor under 16 years of age (Pen. Code, § 288a, subd. (b)(2); all further statutory citations are to the Penal Code unless otherwise noted) and committing a lewd act upon a 15-year-old child who was at least 10 years younger than himself (§ 288, subd. (c)(1)). Blanco contends the trial court erred in denying his motion to withdraw his guilty plea based on an inaccurate advisement concerning sex offender registration. For the reasons expressed below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
At a preliminary hearing conducted in April 2009, Officer Jason Willard testified he was on duty in La Habra on the afternoon of July 19, 2007, when an off duty firefighter approached him to report seeing what he believed to be an illicit sexual encounter between 46-year-old Blanco and a female minor. The firefighter explained he spotted Blanco summoned a female, 15-year-old Jane Doe, who was walking along the curb of Whittier Boulevard. Blanco and Doe spoke briefly, and Blanco then parked near a bank. Doe approached Blanco's vehicle and the pair engaged in further conversation. Doe entered the passenger side of the Blanco's vehicle and disappeared, putting her head in Blanco's lap for about five minutes. The firefighter also saw Blanco touch the girl's torso. Doe left Blanco's vehicle, and he gave her some type of paper.
The firefighter called the police. Blanco then drove to a different location in the parking lot and parked near a drug store. Doe followed on foot. She reentered the SUV, and again disappeared into Blanco's lap for several minutes.
Officer Phillip Principe spoke to Doe shortly after the incident. She appeared to be about 14 years old. She wore a black tank top and gray, knee-length shorts. Doe stated she was walking in the area and saw Blanco's vehicle. She thought it might contain a relative, but as it drew closer she realized she had been mistaken. Blanco encouraged her to approach and speak to him, and then to enter, which she did reluctantly. He opened the passenger door and tugged at her shorts. Blanco caressed her leg and moved his hand toward her crotch area. She became fearful and tried to open the door, but it was locked. Blanco caressed her breasts, and asked if she would be willing to "go down on him." She declined. Blanco unzipped his pants and exposed his erect penis. He grabbed her hand, put it on his penis, but she quickly pulled it away. He then began masturbating himself. She denied there was an exchange of money.
Officers reinterviewed Doe at the police station. She altered her earlier version of events and claimed Blanco tugged on her shorts to get her into the SUV. She mentioned for the first time the second incident by the drug store. She also said Blanco offered to "pay her money for a blow job," pushed her head towards his lap, but she resisted his efforts.
Detective Dean Capelletti testified he interviewed Doe a third time because of discrepancies in her story. She ultimately admitted she "did it," meaning she orally copulated Blanco consensually for $15. They touched each other over clothing, and she touched his penis with her hand. She orally copulated him twice. It was Blanco's idea and she "really wasn't forced, per se, but [she] thought [or felt she] was." She told Blanco her age when they first spoke. The officer who arrested Blanco testified Blanco denied visiting the shopping center.
A felony information charged Blanco with oral copulation with a minor under 16 years of age and committing a lewd act on a 15-year-old child at least 10 years younger than Blanco. Trial commenced March 3, 2010. On March 4, after jury selection and opening statements, Blanco informed the trial court he would plead guilty based on an indicated sentence from the court.
Blanco initialed and signed an advisement and waiver of rights form reflecting he was pleading guilty to the charges in exchange for a grant of probation subject to various terms and conditions, including a 180-day jail term. The form provided, "I understand the court will: [¶] . . . [¶] (h) [o]rder me to register pursuant to the following: [¶] . . . [¶] P.C. 290 — (sex offense) I understand I will have to register for the rest of my life if I work, attend school, or reside in California." Blanco initialed next to this provision.
Blanco also placed his initials next to the following statement, apparently handwritten by his lawyer: "[T]he following terms are also part of this plea: . . . I have been advised of and understand the potential lifetime consequences of PC 290 registration as outlined on the attached Additional Advisement as to Plea Consequences." (Italics added.)
On page 5 of the document captioned, "TERMS AND CONDITIONS OF FELONY PROBATION," Blanco initialed next to a paragraph providing, "Register pursuant to: [¶] . . . [¶] (c) PC 290 [sex offense-lifetime registration]." He also agreed to "[c]omply with the attached Sex Offender Terms and Conditions of Probation as directed by Probation." Page 6 of the form was captioned "ADDITIONAL ADVISEMENT AS TO PLEA CONSEQUENCES." Blanco initialed beneath the following printed statement: "I understand that since I am required to register as a sex offender pursuant to . . . section 290, the following are additional potential [added by interlineation] lifetime consequences of this plea. [¶] Lifetime 290 registration requirements; [¶] Lifetime restriction from residing within 2000 feet of any public or private school, or park where children regularly gather; [¶] Lifetime monitoring by a Global Positioning System (GPS) device."
After the plea and disposition, the prosecutor noted Blanco had not initialed the space directly next to the reference to . . . section 290, although he had initialed next to the line containing the provision. Both counsel agreed the absence of initials was probably inadvertent, and the court stated, "Since line 10 was initialed the Court doesn't believe that, since we've adequately advised him of it verbally and we have a transcript thereof, that it's necessary for him to do any further initialing. The form is complete as far as I'm concerned."
On Page 8 of the form captioned "SEX OFFENDER TERMS AND CONDITIONS OF PROBATION — ADDENDUM," Blanco initialed next to the paragraph, "Register pursuant to [section] 290; initial registration within 5 working days after release from custody [added by interlineation]; re-registration if your residence changes, within 5 working days; annually, within 5 working days of your birthday. Registration is a lifetime requirement; you must have a copy of your current and valid registration in your possession at all times."
Finally, Blanco placed his initials next to the following paragraph: "Appeal waiver: I understand I have the right to appeal from decisions and orders of the Superior Court. I waive and give up my right to appeal from any and all decisions and orders made in my case, including motions to suppress evidence brought pursuant to . . . section 1538.5. I waive and give up my right to appeal from my guilty plea. I waive and give up my right to appeal from any legally authorized sentence the court imposes which is within the terms and limits of this plea agreement." (Original bold.)
At the hearing on the change of plea, Blanco acknowledged signing and initialing the forms after reading them "fully and talk[ing] them over with [his] lawyer." He expressly waived his constitutional trial rights. After the plea and disposition, the court invited comment on disposition from the prosecutor and the victim. The prosecutor stated the victim approved of the disposition, and noted, "The important thing in this case was that Mr. Blanco submit to the requirements of [section] 290. And the amount of time, although arguably his conduct could warrant additional time, in furtherance of everyone's interest in this case and having a sure resolution with registration as a sex offender for the rest of his life, the People are not objecting to the disposition."
Six days after the guilty plea, Blanco, represented by a different lawyer, filed a motion to recall the sentence. Counsel noted Blanco had been given until April 19 to report to jail, and the court had directed him to register as a sex offender after release from custody. But the probation department informed Blanco he would be arrested and charged with a felony if he did not register by March 11. On March 11, the court recalled the sentence (§ 1170, subd. (d)), vacated probation, and set a resentencing hearing for April 19.
On April 9, Blanco move to withdraw his guilty plea. (§ 1018.) He asserted trial counsel "with the knowledge and approval from the Court and District Attorney, advised [him] he would not have to register as a sex offender until after he served his" jail sentence, and "as set forth in paragraph 17(j) of his waiver form, [he] was advised that his registration requirement was potentially lifetime instead of stating it was a lifetime requirement. . . . [Blanco] relied on this advi[c]e and entered his plea despite the fact that the advi[c]e was contrary to law in that [he] had to register as a sex offender within 5 days of his conviction and that he would have to do this registration every year for the rest of his life." In a declaration, he stated, "I was assured by [counsel] that there was only 'potential' lifetime registration as set forth in paragraph 17(j) . . . ."
At the April 19 hearing, the trial court denied the motion to withdraw the plea, explaining, "As far as the issue on the registration, . . . everybody was of the opinion that there would be no immediacy to the registration, and that was, apparently, important to defendant. And so then . . . we did the procedure whereby we continued the sentencing until today's date. [¶] So, he got what he bargained for . . . . [¶] . . . [¶] [I]t appears to me — in addition to the fact that the forms were fully gone over. I looked the defendant in the eye, and asked him questions about the voluntariness, and was convinced that he knowingly and intelligently waived all his statutory rights, and entered into the plea with full knowledge of the consequences, and there was a factual basis to believe the charges are true, that there is no reason, legal, moral, or otherwise, to allow withdrawal of the plea." The court again suspended sentence and placed Blanco on probation, advising him to "register pursuant to Section 290," noting "[i]t appears as it is [lifetime registration], unless it turns out that it is not. It is the order of the Court that he comply with all the registrations required by the Penal Code — it appears at this point, apparently, it's lifetime — and all other terms and conditions as originally imposed pursuant to Page 5 of the Waiver of Rights Form and the attachment having to do with the sex offender terms and conditions."
On June 25, Blanco, represented by yet another lawyer, asked the trial court to reconsider the denial of his earlier motion to withdraw his plea because Blanco did not understand the consequences of his plea. He argued the Tahl form advised Blanco of "potential lifetime" sex offender registration, and noted he had "failed to initial box 10(c) which mentioned lifetime registration . . . ." (Original italics.) He asserted the plea agreement contained two illegal probation conditions: (1) he would be allowed to register after his release from custody, and (2) there was "only a potential that [he] would have to register under" section 290. (Original italics.) He argued the remedy was not to force "a new and different agreement upon" him, but to advise him of his right to withdraw his plea. (See § 1192.5.)
At the July 23 hearing on the motion, Blanco testified he did not recall his lawyer telling him sex offender registration was mandatory. Counsel told him there was only a "potential" he would have to register and "it's not necessarily mandatory." Blanco told counsel he "would not plead if it was going to be lifetime registration." By his "understanding it was optional. It was not mandatory. I would never have signed it if he had not put that word 'potential' on there." Blanco stated "potential" meant "it may happen, may not happen."
The trial court denied Blanco's motion to withdraw his guilty plea. The court found Blanco's explanation lacked credibility, explaining: "[T]he form is clear. Significantly several places on the form that he fully read, claimed at the time he understood, claimed he read, state that [lifetime sex offender registration] is a consequence. [T]o advise of potential consequences, even if the consequence is certain, . . . ought to be sufficient because to advise of potential consequences is merely to say, 'This could happen to you and you ought to know this can happen to you and I can't absolutely guarantee that it will not happen to you or happen to you, all I'm telling you is that this certainly could happen to you.'" The court remarked, "I have no evidence that anybody told him, that it was not going to apply to him."
The trial court granted Blanco's request for a certificate of probable cause.
II
DISCUSSION
A. Blanco Did Not Waive the Right to Claim on Appeal His Guilty Plea Was Involuntary
We do not agree with the Attorney General that Blanco's waiver of the right to appeal precludes review of his contention that he unknowingly and involuntarily entered his guilty plea. It is certainly true that a defendant may waive the statutory right to appeal as part of a plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) But a defendant's decision to enter a plea agreement and waive the right to appeal is not valid unless it is a knowing, intelligent, and voluntary waiver. (Ibid.) If a defendant's decision to enter a plea agreement is based on misadvice from either the court or counsel, the decision to waive the right to appeal cannot be knowing and voluntary. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157 ["the issue of whether the guilty plea was informed and voluntarily made will always remain open for appellate review"]; People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [defendant may waive the statutory right to appeal as part of a plea agreement "provided it is knowing, intelligent and voluntary"].)
Here, Blanco claims he decided to plead guilty and waive his right to appeal based on incorrect advice that rendered his plea unknowing and involuntary, ie., that he was only "potentially" subject to registration. Blanco therefore may raise this specific issue on appeal. B. The Trial Court Did Not Abuse Its Discretion in Denying Blanco's Motion to Withdraw His Guilty Plea
Section 290 mandates that a defendant register as a sex offender upon conviction of certain enumerated crimes, including the offenses Blanco admitted committing. The trial court advised Blanco of this requirement before accepting his guilty plea. Blanco, however, contends he entered his guilty plea believing he was not subject to mandatory registration. As he explains, "[b]ecause the word 'potential' was added to the plea form [Blanco] believed that the registration requirement was not mandatory." According to Blanco, this misunderstanding rendered his plea involuntary and therefore the trial court abused its discretion in denying his motion to withdraw his guilty plea. We do not find the contention persuasive.
On application of a defendant anytime before judgment, "the [trial] court may . . . 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." (§ 1018.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence. [Citations.]" (People v. Cruz (1974) 12 Cal.3d 562, 566.) It is not enough that the defendant has changed his mind (In re Brown (1973) 9 Cal.3d 679, 686, disapproved on another ground in People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098, fn. 7) or was reluctant or yielded to his counsel's persuasions in pleading guilty (People v. Urfer (1979) 94 Cal.App.3d 887, 892). This is especially true in the context of a negotiated disposition. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919 (Ravaux) ["'[g]uilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged'"].)
Voluntariness, in the plea-withdrawal context, involves "factual questions for the trial court to resolve," and the court is "not bound to accept and give credence to the affidavits submitted in support of the motion," even if they are uncontradicted. (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) "[T]he trial court, as trier of the fact, is the judge of the credibility of the witness whether he testif[ies] in person or by affidavit. [Citations.]" (Ibid.) The court weighs "the defendant's obvious interest in the outcome of the proceeding. [Citations.]" (People v. Beck (1961) 188 Cal.App.2d 549, 553; Ravaux, supra, 142 Cal.App.4th at p. 918.)
"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. [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
A trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.) This obligation includes the duty to advise of the requirement to register as a sex offender upon conviction of a statutorily enumerated offense. (Ibid.) It is not enough to inform the defendant of the registration requirement; a trial court must explain the responsibility to register lasts for the duration of the defendant's life. (Ibid.) "[T]he duty exists because the ignominy and the duration of the registration requirement make it a particularly harsh sanction, and only if a defendant is apprised of the duration can he or she fully appreciate the gravity of the consequence of the plea, so as to make the plea voluntary and intelligent." (Id. at p. 1482.) A defendant is entitled to withdraw his plea only if he establishes he was prejudiced by the misadvisement, i.e., he would not have entered the plea had the court given a proper advisement. (Id. at p. 1488.)
Here, the record of Blanco's guilty plea supports the trial court's conclusion Blanco understood he was subject to mandatory registration. The form provided, "I understand the court will: [¶] . . . [¶] (h) [o]rder me to register pursuant to the following: [¶] . . . [¶] P.C. 290 — (sex offense) I understand I will have to register for the rest of my life if I work, attend school, or reside in California." Blanco initialed next to this provision. He also initialed the "TERMS AND CONDITIONS OF FELONY PROBATION," acknowledging he would have to "Register pursuant to: [¶] . . . [¶] (c) PC 290 [sex offense-lifetime registration]." At the hearing on the change of plea, Blanco acknowledged signing and initialing the forms after reading them "fully and talk[ing] them over with [his] lawyer." Blanco and his counsel also stood mute as the prosecutor explained, "[t]he important thing in this case was that Mr. Blanco submit to the requirements of [section] 290. And the amount of time, although arguably his conduct could warrant additional time, in furtherance of everyone's interest in this case and having a sure resolution with registration as a sex offender for the rest of his life, the People are not objecting to the disposition." (Italics added.)
Blanco claims his misunderstanding stemmed from the insertion of the word "potential" on the plea form. This occurred in two places on the plea form, both of which Blanco initialed to indicate his understanding and assent. First, Blanco agreed, "I have been advised and understand the potential lifetime consequences of [section] 290 registration as outlined in the attached Additional Advisement as to Plea Consequences." Second, in a separate section entitled, "ADDITIONAL ADVISEMENT AS TO PLEA CONSEQUENCES," Blanco initialed language that read, "I understand that since I am required to register as a sex offender pursuant to . . . section 290, the following are additional potential lifetime consequences of this plea. [¶] Lifetime 290 registration requirements; [¶] Lifetime restriction from residing within 2000 feet of any public or private school, or park where children gather; [¶] Lifetime monitoring by a Global Positioning System (GPS) devise." (Italics added.)
The above passages do not support Blanco's claim he was advised there was only a possibility he would have to register as a sex offender. The advisement unequivocally states, "I understand . . . I am required to register as a sex offender . . . ." The word "potential" does not modify the word "registration"; rather, it is inserted before the listed consequences of mandatory registration. It may be that Blanco did not understand that mandatory registration and its consequences was almost certainly a lifetime disability, but that is not an issue he has raised on appeal.
Blanco complains his misunderstanding resulted from "the mis-communication between himself and his counsel." If Blanco means to suggest that his lawyer misadvised him that registration was not necessarily a lifetime requirement, then his remedy is to file a habeas corpus petition. (See In re Vargas (2000) 83 Cal.App.4th 1125, 1133-1134 [voluntariness of plea depends on whether counsel competently advised defendant; ineffective advice gives rise to claim for relief from guilty plea].) On the record before us, however, Blanco is not entitled to relief. The trial court was not required to accept Blanco's assertion he did not comprehend plea terms that unambiguously required him to register as a sex offender for life. As the trier of fact, the trial court reasonably could conclude Blanco simply regretted agreeing to a plea that required mandatory registration. Because we may not second-guess the trial court's implicit factual determinations and because Blanco does not raise an ineffective assistance of counsel, his appeal fails.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.