Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA300109, Michael S. Luros, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Michael Allan Conover appeals from the superior court’s denial of his motion to withdraw his plea of no contest to three counts of second degree robbery, one count of assault with a deadly weapon, and one count of petty theft with a prior, as well as his admissions of related enhancement allegations. Conover was sentenced to a term of 20 years in prison.
Conover contends his counsel provided ineffective assistance by failing to inform him of exculpatory evidence when advising him regarding his plea, and the trial court therefore abused its discretion by denying his motion to withdraw his plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because Conover pleaded no contest before trial commenced, these facts are derived from the preliminary hearing testimony and the probation officer’s report.
On March 7, 2006, Conover visited an Auto Zone store located in Eagle Rock. He left the store with a remote keyless entry alarm and “straps,” without paying for the merchandise. Auto Zone employee Charles Cox confronted Conover, asking him to pay for the merchandise. Conover pulled a large knife from his pocket. He pointed and jabbed it at Cox and at employee Pedro Madrid. Madrid threw a trash can at Conover. Conover stated that he would return with his “homies,” and departed from the store in his vehicle.
On March 21, 2006, Conover entered an Eagle Rock Kragen Auto Parts store and left with an Edelbrock intake manifold for which he had not paid. Employee Narciso Zepeda followed Conover to the store’s exit. Zepeda walked behind Conover and asked whether he wanted to pay for the merchandise. Conover ignored Zepeda and tossed the merchandise into his truck. Conover aggressively approached Zepeda and asked what Zepeda was going to do. Conover reached for his waistband, as if for a gun, and stated, “Walk away fool.” Zepeda, fearing that Conover was armed, complied. Conover departed in his truck with the manifold.
2. Procedure.
a. Conover’s plea and sentence.
Conover was charged with three counts of second degree robbery (Pen. Code, § 211), one count of assault with a deadly weapon (§ 245, subd. (a)), and one count of petty theft with a prior (§ 666). The information further alleged that Conover personally used a deadly weapon, a knife, during two of the robberies (§ 12022, subd. (b)(1)); had suffered two prior “strike” convictions (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)); had suffered one prior serious felony conviction (§ 667, subd. (a)(1)); and had served three prior prison terms (§ 667.5, subd. (b)). Conover pleaded not guilty at his arraignment. After the trial court granted his Romero motion and struck one prior conviction allegation pursuant to section 1385, Conover withdrew his not guilty plea and pleaded no contest to all five counts in an open plea. He further admitted serving one prior prison term (§ 667.5, subd. (b)) and admitted one prior serious felony conviction (§§ 667, subd. (a)(1), (b) – (i), 1170.12, subds. (a) – (d).) On June 15, 2006, the trial court sentenced Conover to a total term of 20 years in prison and imposed a restitution fine, a suspended parole revocation fine, and a court security assessment.
All further undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
b. Motion to withdraw the plea and trial court’s denial.
On July 5, 2006, Conover moved in propria persona to withdraw his plea, on the grounds his counsel had provided ineffective assistance. Conover’s primary complaint was that his counsel had failed to alert him to the existence of exculpatory evidence when he advised Conover to plead no contest. According to Conover, had he known exculpatory evidence existed, he would have insisted on proceeding to trial. While Conover’s motion to withdraw the plea was pending, the trial court issued a certificate of probable cause.
On November 1, 2006, the trial court heard and denied Conover’s motion to withdraw his plea. The court concluded Conover had failed to establish his counsel performed inadequately, or that there was any likelihood of a more favorable result had Conover proceeded to trial. This appeal followed.
DISCUSSION
1. Conover’s motion must be construed as a petition for writ of habeas corpus; so viewed, it lacks merit.
a. Conover’s motion was untimely under section 1018.
The parties appear to assume that Conover’s motion was brought pursuant to section 1018. That statute provides that before judgment has been entered a court may permit withdrawal of a guilty plea for good cause. (§ 1018; People v. Sandoval (2006) 140 Cal.App.4th 111, 123; People v. Weaver (2004) 118 Cal.App.4th 131, 145-146; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) To establish good cause, the defendant must show mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming the exercise of his or her free judgment. (People v. Sandoval, supra, at p. 123.) The burden is on the defendant to present clear and convincing evidence that the ends of justice would be served by permitting a change of plea to not guilty. (Ibid.; People v. Huricks, supra, at p. 1207; People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) A plea may not be withdrawn merely because the defendant changed his or her mind. (In re Vargas (2000)83 Cal.App.4th 1125, 1143; People v. Huricks, supra, at p. 1208.) We review a trial court’s ruling on an application to withdraw a plea for abuse of discretion, and adopt the trial court’s factual findings where supported by substantial evidence. (People v. Fairbank, supra, at p. 1254; People v. Sandoval, supra, at p. 123.)
However, a defendant who seeks to withdraw his guilty plea pursuant to section 1018 must do so before judgment has been entered. (People v. Weaver, supra, 118 Cal.App.4th at p. 145; People v. Castanda (1995) 37 Cal.App.4th 1612, 1616-1617; People v. Grgurevich (1957) 153 Cal.App.2d 806, 810-811.) Here, Conover pleaded and the trial court orally pronounced sentence on June 15, 2006. In a criminal case, judgment is rendered when the trial court orally pronounces sentence. (People v. Ibanez (1999) 76 Cal.App.4th 537, 543; People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Conover’s motion to withdraw his plea was not filed until July 5, 2006, after judgment was entered. Thus, although the parties do not address the issue either here or below, Conover’s motion was not cognizable under section 1018 because it was untimely.
b. Coram nobis does not lie for a claim of ineffective assistance of counsel.
Despite the untimeliness of the motion under section 1018, “the courts have long permitted defendants to move to set aside the judgment as a means of allowing the defendant to withdraw the guilty plea after judgment.” (People v. Castaneda, supra, 37 Cal.App.4th at p. 1617; People v. Miranda (2004) 123 Cal.App.4th 1124, 1132, fn. 6.) A postjudgment motion amounts to a motion to vacate the judgment and is the equivalent of an application for a writ of error coram nobis. (People v. Miranda, supra, at p. 1132; People v. Castaneda, supra, at p. 1618; People v. Grgurevich, supra, 153 Cal.App.2d at p. 810; cf. People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4.) “ ‘The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]’ ” (People v. Gallardo (2000) 77 Cal.App.4th 971, 987; People v. Dubon (2001) 90 Cal.App.4th 944, 950-951.) As with a motion to withdraw a plea under section 1018, we review the trial court’s ruling on a petition for writ of error coram nobis for abuse of discretion. (People v. Dubon, supra, at p. 951.)
It is well established that coram nobis does not lie for a claim of ineffective assistance of counsel, the claim raised here. (People v. Gallardo, supra, 77 Cal.App.4th at p. 987; People v. Miranda, supra, 123 Cal.App.4that p. 1132, fn. 6.) “A claim that the defendant was deprived of effective representation of counsel is not an appropriate basis for relief by writ of coram nobis and must be raised on appeal or by petition for writ of habeas corpus instead.” (People v. Gallardo, supra, at p. 987.)
c. Conover’s motion, construed as a petition for writ of habeas corpus, fails to establish a basis for relief.
Accordingly, we construe Conover’s motion as a petition for a writ of habeas corpus. A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. To meet that burden, the petitioner must prove, by a preponderance of the evidence, facts that establish a basis for relief. (In re Visciotti (1996) 14 Cal.4th 325, 351.)
Plea bargaining and pleading are critical stages in the criminal process at which an accused is entitled to effective assistance of counsel. (In re Resendiz (2001) 25 Cal.4th 230, 239; In re Alvernaz (1992) 2 Cal.4th 924, 933; In re Vargas, supra, 83 Cal.App.4th at p. 1133.) To establish ineffective assistance, Conover bore “ ‘the burden of proving by a preponderance of the evidence both (1) that counsel’s performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.]’ [Citations.]” (In re Scott (2003) 29 Cal.4th 783, 811; Strickland v. Washington (1984) 466 U.S. 668, 687.) When a defendant contends incompetent advice led to his entering a guilty plea, to satisfy the “prejudice” requirement he “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985) 474 U.S. 52, 59, fn. omitted; In re Resendiz, supra, at p. 253; People v. Maguire (1998) 67 Cal.App.4th 1022, 1028; In re Alvernaz, supra, at p. 934; In re Vargas, supra, at p. 1140.) A petitioner’s self-serving assertion that he or she would not have accepted a proffered plea bargain but would instead have proceeded to trial must be “corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (In re Alvernaz, supra, at p. 938; In re Resendiz, supra, at p. 253; In re Vargas, supra, at p. 1140.)
(i) Materials appended to Conover’s motion.
As noted, Conover’s motion was based on his claim that defense counsel failed to fully advise him of “all potentially exculpatory evidence so he could make an informed decision whether to accept his attorney’s advice.” To prove this claim, Conover appended to his motion a variety of purportedly exculpatory materials, as follows.
On appeal, Conover does not appear to contend that counsel failed to adequately investigate. Indeed, the majority of materials Conover points to in support of his argument were obtained from defense counsel’s files, suggesting that counsel did an adequate job investigating potential exculpatory evidence.
A. Richard Hastings document.
Conover presented a handwritten document reflecting the observations of one Richard Hastings, purportedly an eyewitness to events at the Auto Zone crime scene. In that document, Hastings averred that he was living in his car at the time of the crime; he was in the Auto Zone parking lot and saw “Pedro and Chuck [i.e., Madrid and Cox] chase [appellant]” out of the store; Madrid hit appellant with a trash can; and appellant, who had a small package in his hands, ran. Conover suggests this evidence was exculpatory because Hastings did not state that Conover pulled a knife, as described by the victims.
To the contrary, this evidence was marginally exculpatory at best. Hastings’s account of the incident in most respects corroborated that of the victims. In particular, Hastings’s statements constituted evidence that Conover was at the Auto Zone store, thereby undercutting any claim that the victims had mistakenly identified him as the culprit. Further, Hastings did not expressly deny that Conover was carrying a knife. Hastings’s testimony was, therefore, of marginal use to the defense.
B. Photographic lineup.
Second, Conover appended to his motion a copy of a six-pack photographic lineup from which Cox and Madrid identified him. Conover contends the lineup was unduly suggestive because he was one of only two blonds in the lineup, and the police should have used a more recent booking photo of him, rather than an older photo. The trial court concluded the photographic lineup was not constitutionally defective.
The trial court was clearly correct. “Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.” (People v. Yeoman (2003) 31 Cal.4th 93, 123; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114; People v. Cunningham (2001) 25 Cal.4th 926, 989.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367; People v. Yeoman, supra, at p. 124; People v. Cunningham, supra, at p. 990.) The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Cunningham, supra, at p. 989.) Unfairness must be proved as a “ ‘demonstrable reality,’ not just speculation.” (People v. Contreras (1993) 17 Cal.App.4th 813, 819.)
We have reviewed the copy of the photographic lineup appended to Conover’s motion and agree with the trial court that it was not unduly suggestive. Nothing about the composition of the lineup made Conover stand out from the other subjects. The other five subjects, like Conover, were White. They appear to be roughly the same age, and their facial features are quite similar. All the men have mustaches and facial hair, and all have closely shaven or bald heads. The purported absence of blonds in the lineup is not particularly noticeable and did not make Conover’s photograph stand out. “[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.]” (People v. Brandon, supra, 32 Cal.App.4th at p. 1052; People v. Carpenter, supra, 15 Cal.4th at p. 367 [“Because human beings do not look exactly alike, differences are inevitable.”].) Indeed, an identification procedure is sufficiently neutral where the subjects are “ ‘similar in age, complexion, physical features and build . . . .’ [Citation.]” (People v. Leung (1992) 5 Cal.App.4th 482, 500.) Such was the case here. The fact officers purportedly used an older photograph of Conover, rather than his current booking photo, could only have benefited him. Use of an older photograph would likely have made it more, rather than less, difficult for witnesses to identify Conover. Further, the older photograph looked more like the other subjects in the lineup than did the booking photograph.
Because there was no constitutional defect in the photographic lineup, the identification evidence would not have been excluded. Thus, evidence that the lineup was, in Conover’s view, less than perfect would have done nothing to weaken the People’s case.
C. Miscellaneous evidence.
Third, Conover presented a variety of materials, including portions of police reports, photographs of his vehicle, and his own transcriptions of several 911 calls made by the Auto Zone employees both on the date of the crime and on other dates regarding unrelated matters. In a series of handwritten notations, Conover detailed his thoughts about purported discrepancies and contradictions in the evidence, especially as they related to the victims’ descriptions of the perpetrator and his vehicle.
Our review of these materials suggests that, while the defense might have been able to make limited use of a variety of minor inconsistencies in the evidence, none of the purportedly exculpatory evidence would have materially weakened the People’s case.
(ii) Conover has failed to establish either component of his ineffective assistance claim.
Conover’s motion thus failed to establish either that his counsel’s performance was substandard, or that he suffered prejudice as a result. Conover’s contention that counsel failed to apprise him of relevant exculpatory evidence is uncorroborated. (See In re Alvernaz, supra, 2 Cal.4th at pp. 938, 945; In re Vargas, supra, 83 Cal.App.4th at p. 1140.) A trial court is not obliged to accept a defendant’s self-serving assertions without independent corroborating evidence. (In re Alvernaz, supra, at pp. 938, 945; In re Vargas, supra, at p. 1140.) The record before us contains only self-serving allegations, and does not establish that counsel actually failed to discuss exculpatory evidence with Conover. Thus, Conover has failed to establish that counsel performed inadequately.
Even assuming arguendo that counsel performed below an objective standard of reasonableness, Conover cannot establish prejudice. As noted ante, when a defendant contends incompetent advice led to his entering a guilty plea, to show prejudice he must demonstrate a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. (People v. Maguire, supra, 67 Cal.App.4th at p. 1028; In re Alvernaz, supra, 2 Cal.4th at p. 934; In re Vargas, supra, 83 Cal.App.4th at p. 1140.) Conover has failed to meet that burden. The evidence presented in his motion did not demonstrate that a meaningful defense to the charges existed. Defense counsel managed to convince the trial court to strike a prior conviction allegation, resulting in a very substantial decrease in Conover’s sentence. It is undisputed that had Conover been found guilty of all the charges and enhancement allegations, he was facing a lengthy sentence, well over 65 years in prison. Given the apparent strength of the People’s evidence, the weak exculpatory evidence offered by Conover, and the favorable Romero ruling defense counsel managed to obtain, there is no reasonable probability Conover would have proceeded to trial had his attorney informed him of the evidence in question. Indeed, on appeal Conover concedes that he “is not challenging counsel’s assessment regarding the strength of his defense or the reasonableness of his advice to enter a plea rather than proceed to trial.” Conover fails to grasp that defense counsel’s purported failure to catalogue every possibly exculpatory evidentiary detail when advising him does not suffice to establish an ineffective assistance claim. Instead, Conover was required to show he would not have pleaded had he been properly advised. He has not met this burden, and therefore the trial court did not err by denying his motion to withdraw his plea.
DISPOSITION
The judgment is affirmed.
We concur:KLEIN, P. J., KITCHING, J.