Opinion
F059189 Super. Ct. No. F09903341 Super. Ct. No. F09904545
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. DARIO JESUS CHAVEZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Dario Jesus Chavez pled guilty to assault by means likely to produce great bodily injury and making criminal threats in exchange for an indicated probationary sentence. He subsequently obtained new counsel and filed a motion to withdraw his guilty plea, claiming he received ineffective assistance of counsel when deciding whether to plead guilty. In support of the motion, Chavez provided a declaration stating he did not know until after obtaining new counsel that he had pled guilty to a strike offense. Had this been explained to him, Chavez asserted, he never would have entered the guilty plea. Following a hearing, the trial court denied the motion, finding Chavez's assertion lacked credibility and observing that Chavez's concern at the time he entered the plea was with whether he would have to go to prison, not with any future consequences of a felony conviction.
After obtaining a certificate of probable cause, Chavez filed the instant appeal. He contends the trial court abused its discretion and violated his state and federal constitutional rights to due process and effective assistance of counsel by denying the motion to withdraw his guilty plea. We reject this contention and affirm the judgment. As we will explain, even assuming counsel acted incompetently, relevant case authorities required Chavez to corroborate, with objective evidence, his self-serving declaration that he would not have pled guilty had he been advised he was pleading to a strike offense. He failed to present such evidence and, consequently, failed to make the requisite showing of prejudice in support of the motion to withdraw his guilty plea on the ground of ineffective assistance of counsel. In addition, the record provides ample support for the conclusion that Chavez's chief concern when he entered the plea was to avoid a prison sentence in order to be available to care for his gravely ill son. The record discloses no basis for finding the trial court abused its discretion or violated Chavez's constitutional rights by denying his motion to withdraw his guilty plea.
FACTUAL AND PROCEDURAL BACKGROUND
On June 9, 2009, a felony complaint was filed in case No. F09903341, charging Chavez with possession of methamphetamine and Vicodin (Health & Saf. Code, §§ 11377, subd. (a), 11350 subd. (a); counts 1 & 2), and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364, count 3). On June 10, 2009, Chavez pled guilty to count 1, and the remaining charges were dismissed. The court placed him on two years' Proposition 36 probation.
On August 4, 2009, a felony complaint was filed in case No. F09904545, charging Chavez with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1), making criminal threats (§ 422; count 2), first degree residential burglary (§§ 459, 460, subd. (a); count 3), and misdemeanor vandalism (§ 594, subd. (a)(2); count 4). The probation officer's report briefly summarized the underlying facts as follows: "On July 20, 2009, ... Chavez forced his way into the victim's residence, grabbed her by the neck, and threw her to the ground. He then began to choke her, and threatened to kill her. The victim was pregnant at the time of the attack. The victim sustained redness and bruising to both sides of her neck, and to her left collar bone area."
Further statutory references are to the Penal Code unless otherwise specified.
On October 9, 2009, Chavez pled guilty to counts 1 and 2, and count 3 was dismissed. As mentioned above, the plea agreement contemplated that he would receive a probationary sentence. However, the court also advised Chavez that as a result of the plea, he could face a maximum prison sentence of four years eight months if the court found him unsuitable for probation.
During proceedings on November 10, 2009, the trial court addressed the issue of substitution of counsel. Although a substitution agreement had been prepared and signed by all the parties, Chavez's new counsel was unable to attend the hearing and had another attorney stand in for him. The court decided to continue the matter until Chavez's new attorney could be present. Chavez then requested to speak to the court. The court granted his request and this discussion followed:
"THE DEFENDANT: I was going to hire the attorney to withdraw my plea, that is why. I was not clear on what was going on at the last court, the last court date, and I didn't know that it was a strike case that I was fighting. I really didn't know like the seriousness of what was going on that day.
"THE COURT: Okay.
"THE DEFENDANT: And I was under the impression that if I signed, I would get out sooner. And also when I tried to tell the Public Defender that I wanted to withdraw my -- when I signed the paper, he told me I would get in trouble for doing it.
"THE COURT: Well, sir, at this point, there is no motion that has been made by your attorney before the Court. It is going to have to be in writing. So you will have to speak with your attorney, the new attorney ... about it. The Court would also have to get a transcript of the change of plea and have to review that. So it is probably best if you save those comments for your conversations with your attorney. Because while you may believe that you may have a basis for withdrawing your plea, it is up to the attorney to determine whether there is actually a legal basis for the plea to be made. And then, of course, it is up to the Court to decide whether the withdrawal should be allowed or not.
"Was there anything else, sir?
"THE DEFENDANT: No. I just wanted I don't know if I'm going to be coming before you again or not, or how it works, but I just wanted to tell the Court that my son is sick. He is dying in the hospital. I'm the full custody parent. He is missing the appointment because of his mother having a baby. I used to be a CDF fire fighter. I think it looks good in my life. I had a rough time. Met this girl. I'm hoping to put this behind me as soon as possible so I can move on with my life.
"THE COURT: I do recall the change of plea.... I recall the circumstances involving your son. I also read the probation report where it is reiterated. I also recall your mother who was in the audience the day the change of plea was taken. So I'm familiar with your case. The problem is today's date, your attorney ... is not present, and if he is going to be making any type of motion, I need to have that in writing. So is it all right
with you, sir, if we set your case over for one week, until the 17th of November, at 8:30, in this department?
"THE DEFENDANT: Sure.
"THE COURT: All right. Then this matter will be heard at 8:30 in
this department, that is the 17th. Mr. Chavez, you are to be present on that date and time. You remain in custody on both these cases, actually, with no bail, pending sentencing.
"THE DEFENDANT: Can I ask something?
"THE COURT: Yes, sir.
"THE DEFENDANT: Is it possible when I ask the Court when I come back to be placed on the monitor, so I can be available for my son?
"THE COURT: That is possible, sir, but that is something you need to speak with your attorney about."
The probation report mentioned by the trial court corroborated Chavez's statements concerning his care of his ill son. In relevant part, the report stated:
"On October 30, 2009, this officer spoke with Alister Robertson, a pediatric social worker in the oncology unit at the Central Valley Children's Hospital. Mr. Robertson confirmed that the defendant's eleven year old son has Medula Blastoma, a type of brain cancer, and has been in the intensive care unit, after undergoing neurosurgery, on several occasions in the past two months, as well as receiving treatment in San Francisco. Mr. Robertson stated that the defendant has primary custody of his child, and has been a consistent presence in caring for his child and transporting him to his numerous scheduled appointments, procedures, and surgeries, for the past seven years. Mr. Roberson stated that the defendant has been an 'excellent' advocate for his child. Mr. Robertson stated that while the defendant has been in custody, the child has missed a scheduled appointment due to his mother giving birth to a new child. Mr. Robertson stated that the child is not currently in the hospital, but is in a 'high risk situation' and is facing several treatments and procedures, including an 'experimental phase' of treatment."
During the proceedings on November 17, 2009, the trial court received the substitution of attorney form and noted that it had received the motion filed by Chavez's new counsel to withdraw his guilty plea. The motion was supported by Chavez's declaration, which stated, in pertinent part:
"6. I had no idea that I was agreeing to plea to a strike, and it would stay on my record for the rest of my life, I am innocent and would never have entered such a plea had this been explained to me. It wasn't until after the plea and hiring [new counsel] that I learned I had plead[ed] to a strike, which would stay on my record for the rest of my life. [¶] 7. It has been extremely difficult for me to authorize my attorney to file this motion because in the back of my mind I just want to get out to be with my son before he dies. If the court finds just cause, it would be sufficient that your honor reduce the Penal Code § 422 violation to a misdemeanor, otherwise allow me to withdraw my plea. I am going to follow my Attorney's advice and attempt to correct a bad, misinformed, decision made on October 9, 2009, that would impact me for the rest of my life. I should not have to live with the consequences of a misinformed decision to plead to a strike that I am completely innocent of."
On December 3, 2009, the trial court heard and denied Chavez's motion to withdraw his guilty plea. The court reasoned, in part:
"Contrary to what was represented, based upon the transcript of the change of plea, based upon the change of plea form itself, and this Court's very clear advisement of his rights and the consequences of his plea, the Court is satisfied that Mr. Chavez knew what he was doing. Mr. Chavez's concern was whether he was going to go to state prison. He was not concerned -- his concern was not with any future consequences of a felony conviction. Whether it was a strike or not a strike. That was not his concern at the time he entered his plea. The Court makes that determination based upon the defendant's statements during the change of plea, based upon the information in the change of plea form. [¶] And contrary to his declaration now, after the fact, saying that if he had known it was a strike he would not have pled, frankly, I'm not finding that very credible, not at all."
After denying the motion to withdraw the guilty plea, the court proceeded to sentencing. As contemplated by the plea agreement, the court placed Chavez on three years' probation and ordered him to serve 150 days in jail with credit for 90 days served. The court also terminated Chavez's Proposition 36 probation and placed him on regular felony probation with respect to his methamphetamine possession case. During sentencing, the trial court addressed Chavez with the following observations:
"I remember when your mother stood up ... and asked that you be released because you had a son that was ill. You've made the same request a number of times .... And what was always in the back of my mind, here is someone who has a family member who is seriously ill, I'm not questioning that in any way whatsoever, but yet this individual who says he wants to be there for his family is here behind bars, in jail. And yet that same statement came up today, you want to be there for your son and help your son. You can't help your son sitting in jail, sir. You can't help your son doing drugs. You can't help your son putting your hands around somebody's neck and threatening to kill them, when they are pregnant. Kicking down somebody's door. That is not helping your son. I'm glad that your mother is here. And you said that this is your brother that is here with you .... [¶] ... [¶] I'm hoping they're hearing this. [¶] Based upon your history, Mr. Chavez, the Court will find that you are at this point a marginally suitable candidate for a grant of probation. Which suggests to you, it should suggest to you, Mr. Chavez, that a further violation of probation in this case or your drug case is very likely to result in your going to state prison. Which is not going to help your son, help your mother, help your brother, but it is probably going to help the people of the State of California."
On December 11, 2009, Chavez filed a notice of appeal, and the trial court denied his attached request for a certificate of probable cause. On December 10, 2010, this court granted Chavez's request to order the trial court to issue a certificate of probable cause. On February 19, 2011, the trial court vacated its prior order and issued a certificate of probable cause to challenge the court's denial of his motion to withdraw his guilty plea.
The record reflects that in the first half of 2010, Chavez was found to be in violation of probation and sentenced to prison for a total of three years, after he entered a no contest plea to a new felony charge of leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). This case and the methamphetamine possession case are not directly at issue in the current appeal.
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DISCUSSION
Chavez contends his original trial counsel was constitutionally deficient for failing to advise him of the strike consequence of his guilty plea and, therefore, the trial court should have granted his motion to withdraw his plea. In support of his contention, he relies heavily on Padilla v. Kentucky (2010) 559 U.S. _____ (Padilla),which held that a claim of ineffective assistance of counsel may be based upon misadvising or failing to advise a defendant regarding the possible immigration consequences of a plea. (Id. at pp. 1481-1492.) Although Padilla did not specifically consider the argument Chavez raises here, he contends "[t]here is no reason to distinguish the complicated analysis that is required to give immigration advice that Padilla requires from the very basic advice regarding the Three Strike Law that trial counsel failed to engage in here, and Padilla has rightly called into question the notion of there being a significant distinction between direct and collateral consequences with respect to what constitutes reasonable professional assistance under the federal constitution." We need not decide whether Chavez's interpretation of Padilla is correct because, assuming without deciding his counsel rendered ineffective assistance, he failed to establish he was prejudiced by counsel's failure to advise him that he was pleading guilty to a strike offense (i.e., criminal threats) which could be used to enhance a future sentence. Consequently, the trial court properly denied his motion to withdraw his guilty plea.
A. Applicable Legal Principles
Section 1018 allows the trial court to grant a defendant's request to withdraw his or her plea of guilty or no contest "before judgment ... for good cause shown." "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; People v. Mickens (1995) 38 Cal.App.4th 1557, 1561; People v. Sandoval (2006) 140 Cal.App.4th 111, 123.) A plea may not be withdrawn simply because the defendant has changed his or her mind, and the factors overcoming free judgment must be more than the pressure experienced by "every other defendant faced with serious felony charges and the offer of a plea bargain." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208; People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
The test on appeal is whether the trial court abused its discretion in ruling on the motion, and the reviewing court must adopt the trial court's factual findings if substantial evidence supports them. (People v. Wharton (1991) 53 Cal.3d 522, 585; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Moreover, when the trial court resolves credibility issues against the defendant, a reviewing court is bound by that resolution. (See People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
"Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] '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.] [¶] To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 239, fn. omitted (Resendiz),disapproved on another point in Padilla, supra, 559 U.S. at p. ___ ; see also In re Alvernaz (1992) 2 Cal.4th 924, 934 (Alvernaz).)
"Even assuming that counsel affirmatively misadvised [or failed to advise] [the defendant]-and that [the defendant] thus has satisfied the performance prong of his ineffective assistance claim [citation]-[the defendant] to prevail must additionally demonstrate prejudice ...." (Resendiz, supra, 25 Cal.4th at p. 253.) "The test for prejudice that is relevant in light of the preceding is well established. In Hill [v. Lockhart (1985)] 474 U.S. [52,] at pages 58-59, the United States Supreme Court explained that a defendant who [pleaded] guilty demonstrates prejudice caused by counsel's incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel's incompetence, he would not have [pleaded] guilty and would have insisted, instead, on proceeding to trial. [Citations.]" (Resendiz, supra, 25 Cal.4th at p. 253; Alvernaz, supra, 2 Cal.4th at pp. 933-934.)
A defendant's assertion that "he would not have [pleaded] guilty if given competent advice 'must be corroborated independently by objective evidence.' [Citation.] 'In determining whether a defendant, with effective assistance, would have accepted [or rejected a plea] offer, pertinent 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.' [Citation.]" (Resendiz, supra, 25 Cal.4th at p. 253; Alvernaz, supra, 2 Cal.4th at p. 938.)
B. Analysis
Contrary to Chavez's suggestion on appeal, the trial court did nothing improper in rejecting, as incredible, his declaration statement claiming he would not have pled guilty if his counsel had advised him that he was pleading to a strike offense. Chavez complains that "the court's supposed credibility determination was not based on any actual evidence or testimony" and that no evidence was presented rebutting his sworn declaration. His complaint misses the mark because, under the relevant case law set forth above, the burden was on him to present objective evidence to corroborate his self-serving declaration. Chavez briefly dismisses this requirement in his reply brief, asserting "[r]espondent does not suggest what such evidence might ever consist of." However, the case law does outline pertinent factors the court may consider. Here, Chavez was given great leniency by the plea bargain. Facing a maximum sentence of four years eight months, he received probation with the condition he only spend 150 days in county jail. Although he might have escaped conviction at a trial, if convicted he would have faced the same possibility his conviction of a strike offense could be used to enhance a future sentence. There is nothing in the record indicating how Chavez might have been able to avoid a conviction if he had proceeded to trial. He failed to offer any evidence from his counsel relating to possible defenses to the charged offense or to excuse his inability to do so. (See Resendiz, supra, 25 Cal.4th at p. 254.)
Moreover, the record shows the same judge presided over all the relevant proceedings and was thus well positioned to evaluate the credibility of Chavez's declaration. The record supports the conclusion that Chavez's primary concern in entering the guilty plea was to avoid a prison term in order to take care of his ill son. Chavez impressed on the court throughout the proceedings his desire to be released from jail as soon as possible to care for his son and indicated this was the reason he originally entered the plea. Despite his well-documented desire to avoid being separated from his son by incarceration, Chavez offered no compelling explanation why he would have pleaded not guilty and run the risk of receiving a four-year prison term had his counsel advised him that he was pleading guilty to a strike offense, which could be used to enhance a future sentence (depending entirely on Chavez's decision to commit future crimes) but which would have no immediate effect on him. Chavez has failed to show that it is reasonably probable he would have "forgone the distinctly favorable outcome he obtained by pleading, and instead insisted on proceeding to trial, had counsel not misadvised [or failed to advise] him about the [strike] consequences of pleading guilty." (Resendiz, supra, 25 Cal.4th at p. 254.)
DISPOSITION
The judgment is affirmed.
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HILL, P. J.
WE CONCUR:
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WISEMAN, J.
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GOMES, J.