Opinion
E064926
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. AMBER MARIE GIRARD, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore Cropley and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1500123) OPINION APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore Cropley and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Amber Marie Girard appeals from the superior court's order denying her motion to withdraw her guilty plea. On appeal, she argues that the trial court abused its discretion in denying her motion because her trial counsel provided ineffective assistance by failing to investigate whether her prior conviction constituted a strike. We reject defendant's contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing transcript.
On January 7, 2015, while defendant entered through the screening process of the Southwest Justice Center, Riverside County Sheriff's Department Deputy Ryan Galapir noticed a small knife and two bullets inside defendant's purse. After being notified of the knife, defendant exited the courthouse. Deputy Galapir stepped outside and spoke to defendant about the bullets. At that point, defendant handed the deputy the bullets from her purse. The deputy determined the bullets were live ammunition.
On April 15, 2015, an information was filed charging defendant with felon in possession of ammunition (Pen. Code, § 30305, subd. (a)). The information also alleged that defendant had suffered six prior prison terms (§ 667.5, subd. (b)), and one prior serious or violent felony strike conviction, to wit, assault with a deadly weapon (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All future statutory references are to the Penal Code unless otherwise stated.
On May 22, 2015, pursuant to a plea agreement, defendant pleaded guilty to the felon in possession of ammunition charge and admitted that she had suffered one prior strike conviction. In exchange, she was promised that the remaining allegations would be dismissed and that she would be sentenced to a stipulated term of four years in state prison. At the taking of the plea, defendant acknowledged that she had initialed the plea form. Further, she understood her rights under the plea form. Defendant had no questions regarding her waiver of rights and obligations. Defendant also acknowledged that she understood the consequences of the plea. Defendant understood the maximum possible custody time was six years for the charge but that she would be pleading to the middle term doubled due to the strike. Defendant also admitted to "one serious or violent prior, commonly called a strike." With regard to the prior conviction, defendant admitted that "on or about October 11, 1985, in the Superior Court, County of Riverside, [she] [was] convicted of assault with a deadly weapon in violation of Penal Code section 245[, subdivision] (a)(1), which is what we commonly call a strike, a serious or violent felony, [pursuant to sections] 667[, subdivisions] (c) [and] (e)(1) and 1170.12[, subdivision] (c)(1)." After directly examining defendant, the trial court found a factual basis for the plea. The court also found that defendant understood the consequences of her plea and admission and that the plea and admission were entered into freely, voluntarily, knowingly, and intelligently.
On September 8, 2015, defendant filed a motion to withdraw her guilty plea on the ground that she received ineffective assistance of counsel. Defendant argued her counsel pressured her into pleading guilty. She further asserted her counsel failed to look into the validity of her prior strike conviction and discouraged her from filing a motion to strike her prior conviction. Finally, she claimed her counsel failed to file a motion to reduce her prior convictions to misdemeanors pursuant to Proposition 47. The People subsequently filed an opposition to defendant's motion to withdraw her plea.
A hearing on defendant's motion was held on November 6, 2015. At that time, defendant and two deputy public defenders who had represented defendant testified. Irene Farinas testified that she represented defendant until after the preliminary hearing, but that representation was transferred to another attorney prior to defendant's guilty plea. She stated that because defendant had disputed whether her prior conviction was a strike offense, she requested the records of defendant's prior conviction to confirm whether it was indeed a strike. Farinas explained to defendant that if the prior conviction constituted a strike, a Romero motion could be filed, and sent defendant a "Romero questionnaire"—the information was intended to aid Farinas if she requested the trial court to strike the prior conviction pursuant to Romero. Prior to the preliminary hearing, Farinas had not yet received the records pertaining to defendant's prior conviction. However, based on defendant's claim that the prior was not a strike, Farinas made a counteroffer to the People which consisted of a grant of probation and suggested the case proceed to a preliminary hearing at that point since they did not have the records to verify the strike. Farinas also stated that she recognized three of defendant's six prior prison term allegations were eligible for redesignation under Proposition 47, and filed petitions so defendant would receive that relief. Farinas intended to file a Romero motion if the prior conviction was proved to be a valid strike due to the age of the prior, her nonviolent criminal history, and the minor circumstances of the current offense. Following the preliminary hearing, representation of defendant was transferred to Kathleen Pedro, a deputy public defender, and Farinas left "a transfer memo" which instructed Pedro to research whether or not the prior conviction constituted a strike.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Pedro testified she represented defendant when defendant pleaded guilty and admitted the prior conviction. Prior to the plea, Pedro was not in receipt of any court record confirming the prior conviction constituted a strike. At the time Pedro met defendant, the case was set to go to trial, and Pedro's strategy, in part, was to push the People to proceed to trial without having obtained the certified record of the prior conviction. Pedro admitted that defendant was adamant that the previous conviction was not a strike offense, and did not ask the trial court for an indicated ruling on a Romero motion because defendant did not want to plead guilty. Pedro explained that her plan was to move for a Romero motion at the appropriate time if defendant desired to plead to the court and get a court-indicated offer, which defendant was not desiring to do, or at the time of sentencing if defendant was convicted. Pedro acknowledged that the prior strike was 30 years old, and noted that defendant's maximum prison exposure, if convicted, was 12 years. At that time, Pedro did not know whether defendant's Proposition 47 petitions had been granted.
Pedro explained that she strongly encouraged defendant to take the case to trial, but defendant was fearful of being sentenced to prison for a lengthy period of time. Pedro informed defendant that it was a possibility that she could get more than four years if she went to trial and did not discuss with defendant getting an indicated ruling on the Romero motion. While Pedro negotiated with the People for defendant not to admit the prior conviction, the People rejected that offer, but lowered the amount of prison time to four years from a previous plea offer. Part of this plea deal was that defendant was not permitted to file a Romero motion and that defendant would have to admit the prior strike conviction. Pedro communicated this offer to defendant and explained that she would have to admit that the prior conviction constituted a strike if she wanted to accept the plea deal. Pedro left defendant alone to decide whether or not she wanted to accept the plea deal. When Pedro returned, defendant agreed to accept the People's offer and signed the relevant paperwork. Pedro testified that she never pressured defendant to accept the plea offer; and that she never discouraged defendant from pursuing a Romero motion on the ground that it was unlikely it would be granted. Pedro also stated that she had explained to defendant that she could get six years for each of the six prior prison terms because that was the status of the law at that time.
Defendant testified that, although she signed paperwork indicating she had suffered a prior strike conviction, she did not believe the prior conviction was a valid strike because she had never admitted such during her previous six felony convictions. Defendant also stated that she wanted to file a Romero motion, but believed she could not file that motion until there was a conviction. Therefore, defendant claimed that she pleaded guilty in order to file that motion. Defendant believed a stipulated sentence of four years was reasonable.
On cross-examination, the People presented court records of the prior conviction (a section 969b packet). Defendant admitted that she knew assault with a deadly weapon was deemed a strike following a new law in 1990, but explained her crime was before that date and that the People had never alleged in the six prior prison term petty theft cases she had a strike conviction. Defendant acknowledged that she benefitted from the People not filing the strike prior against her in those cases. She also admitted that she understood she had a prior strike conviction for assault with a deadly weapon when she pleaded guilty on May 22, 2015; and that she knew her prior conviction was a violent commitment. Defendant acknowledged filling out the plea form and understanding she would receive a stipulated term of four years, but she believed her sentence could be reduced once a Romero motion was filed.
Based on the above, defendant's counsel argued defendant should be allowed to withdraw her guilty plea because there was confusion among her prior two attorneys whether the strike prior was valid, especially since they had not obtained documentation confirming the conviction was a strike. Counsel further noted that there was confusion as to whether a Romero motion would be filed; that issues relating to Proposition 47 had not been resolved at the time of the plea; and that there was some fear on defendant's part. The People countered that defendant understood she had a strike prior; that defendant's decision to plead guilty was a strategic decision with a full understanding of her rights and consequences; and that defendant cannot now have buyer's remorse because she wanted to file a Romero motion.
The court denied defendant's motion to withdraw her guilty plea, finding neither defense counsel was incompetent in the case. The court explained: "It sounds like they had various strategies. Both felt that the charges were and the possible consequences were harsh for the actual conduct, and they had a particular strategy for dealing with it. [¶] On the other hand, [defendant] made I think a very difficult decision to accept a plea bargain to limit her exposure. And she herself said at the time it was reasonable, even though the result is very harsh; right? Which I understand. I asked her specifically on the record. I looked at the—I had the plea paperwork and the transcript that was filed by the district attorney's office, and I asked her specifically whether it was—she had been convicted of an assault with a deadly weapon, a violation of Penal Code [section] 245[, subdivision] (a)(1), and she said yes. It wasn't just a yes. She asked me—she actually asked me to clarify something. The date; right? So she—we were engaged in at least some back and forth on that issue. She never said it wasn't an assault with a deadly weapon. In fact, she admitted that."
II
DISCUSSION
Defendant contends the trial court abused its discretion in denying her motion to withdraw her guilty plea. In support of her contention, she argues she demonstrated good cause because counsel failed to investigate whether her 1985 assault with a deadly weapon conviction was a valid strike prior to accepting the plea agreement. She further asserts that she was denied her right to be advised of the plea offer by a fully informed counsel. Based on the foregoing, defendant argues the matter must be remanded to allow defense counsel to investigate the alleged strike prior, readvise her, and allow her the options of withdrawing or setting aside the plea.
Guilty pleas and admissions may be withdrawn before judgment for good cause shown. (§ 1018; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) To demonstrate good cause, a defendant must show that her plea was not the product of her free judgment. Mistake, ignorance, fraud, duress or any other factor overcoming the exercise of free judgment is good cause, but must be shown by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Nance (1991) 1 Cal.App.4th 1453, 1456 (Nance).) The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.) "A plea may not be withdrawn simply because the defendant has changed his [or her] mind." (Nance, at p. 1456.) "The fact that [the defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn." (People v. Ravaux (2006) 142 Cal.App.4th 914, 919.)
We review the trial court's ruling for abuse of discretion and adopt the court's factual findings if those findings are supported by substantial evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.) Abuse of discretion is found only if the trial court has exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) 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. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
A criminal defendant is constitutionally entitled to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland).) To show denial of that right, a defendant must show: (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced the defendant. (Id. at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To show prejudice, a defendant must show there is a reasonable probability that he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) It is the defendant's burden on appeal to show that he or she was denied effective assistance of counsel and is entitled to relief. (Ledesma, at p. 218.) "[T]he burden of proof that the defendant must meet in order to establish his [or her] entitlement to relief on an ineffective-assistance claim is preponderance of the evidence." (Ibid.)
The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. (Hill v. Lockhart (1985) 474 U.S. 52, 58.) "Where, as here, a defendant is represented by counsel during the plea process and enters his [or her] plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.' " (Id. at p. 56.) "The second, or 'prejudice,' requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." (Id. at p. 59, fn. omitted.)
With these principles in mind, we find no basis to disturb the trial court's exercise of discretion in denying defendant's motion to withdraw her guilty plea.
Defendant's motion to withdraw was premised on an alleged mistake of fact or ignorance theory, in which she claimed her former counsel was ineffective in failing to confirm whether her 1985 conviction for assault with a deadly weapon constituted a strike within the meaning of the "Three Strikes" law. The record, however, does not support the claim that her attorneys "failed to investigate either facts or law in the manner required of a reasonably competent diligent attorney." (People v. Knight (1987) 194 Cal.App.3d 337, 345.) Indeed, Farinas testified that once defendant expressed doubt as to her prior conviction, she requested the court record to substantiate defendant's claim. Based on defendant's assertion that the prior 1985 conviction was not a strike offense, Farinas made a counteroffer to the People which consisted of a grant of probation, and also suggested proceeding to a preliminary hearing since at that point they did not have records to verify the strike. Farinas also testified that she recognized three of defendant's six prior convictions were eligible for redesignation as misdemeanors under section 1170.18, and filed petitions so defendant would receive that relief. However, Farinas did not file a Romero motion at that point in time because the motion would not have been ripe. Defendant fails to show Farinas acted in an incompetent manner. Instead, Farinas was diligent in attempting to obtain the best possible disposition for defendant.
The same is true as to defendant's second attorney, Pedro. Pedro testified that she encouraged defendant to go to trial because, among other things, her strategy was to push the People to proceed to trial without having obtained the certified record of the prior conviction. Pedro also testified that her plan was to file a Romero motion at the appropriate time, such as if defendant desired to plead to the court and get a court-indicated offer, which defendant declined to do, or at the time of sentencing if defendant was convicted at trial. Pedro informed defendant that the total prison exposure was 12 years if she was convicted following trial. Pedro also discussed the People's plea offer with defendant. Part of the plea agreement with the People was that defendant could not file a Romero motion. Pedro encouraged defendant to go to trial, and when she obtained a better plea offer from the People, she communicated the offer to defendant. With the new plea deal, Pedro successfully secured the People's agreement to strike the six prison priors, in exchange for an admission of the strike offense. Pedro did not pressure defendant to accept the People's plea offer; and, in fact, left defendant alone to make her decision. Defendant testified that she knew she was admitting that her prior conviction constituted a strike, and admitted the sentence she received in exchange was reasonable. While Pedro encouraged defendant to proceed to trial, she understood defendant's desire to accept the plea deal for less time than she was potentially facing.
Although defendant's attorney had no documentation to assess whether defendant's prior 1985 assault with a deadly weapon conviction was a valid strike before advising defendant of the People's plea offer, there was more than a distinct possibility that it was a valid strike. If so, defendant's trial counsel could have made a tactical decision to inform defendant of the mitigated term, further reduced by dismissing the six prior prison term enhancements, rather than face a potentially longer sentence. "[Defendant] has not negated this possibility, and thus has not demonstrated ineffective assistance on this ground." (People v. Cotton (1991) 230 Cal.App.3d 1072, 1085.)
Defendant relies on In re Brown (2013) 218 Cal.App.4th 1216 (Brown) to support her position that her counsel was ineffective here. In Brown, the defendant argued his counsel provided ineffective assistance by failing to adequately investigate the validity of the strike allegation and allowing him to admit a strike he did not suffer following a jury trial on the substantive charges. (Id. at pp. 1218, 1222.) The People conceded that the defendant's juvenile adjudication was for grand theft, not robbery, and therefore did not constitute a " 'serious' " or " 'violent' " felony conviction within the meaning of the Three Strikes law. (Id. at p. 1222.) The People also did not dispute the defendant, whose sentence was doubled as a result of the erroneous admission, was prejudiced by his trial counsel's conduct. (Ibid.) The People argued, however, that the defendant's counsel's investigation into the nature of the juvenile adjudication was objectively reasonable under prevailing professional norms. (Ibid.)
After summarizing defense counsel's duty to investigate, the Brown court concluded the attorney's conduct constituted ineffective assistance of counsel because "[d]efense counsel has a duty to investigate allegations made against his [or her] client, not merely assume their truth." (Brown, supra, 218 Cal.App.4th at p. 1226.) The court also found it inexcusable for counsel to advise his client based on matters not contained in the " 'record of conviction.' " (Id. at p. 1226.) The court explained: " 'Criminal defense counsel has the duty to investigate carefully all defenses of fact and of law that may be available to the defendant.' [Citations.] 'Before entering his [or her] plea, [a defendant is] "entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered." [Citation.] The attorney's role in investigating the facts and researching the applicable law prior to advising the [defendant] to plead becomes particularly important because of the serious consequences of a guilty plea[, which] ". . . is itself a conviction. . . ." ' [Citation.] 'If counsel's "failure [to undertake such careful inquiries and investigations] results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled." [Citations.]' [Citations.]" (Id. at p. 1223.)
Brown, however, is distinguishable from the present matter for several reasons. First, the admission in Brown, unlike here, "was not part of a plea bargain or other sentencing agreement that might have benefitted [the defendant]; instead the admission served only to double his prison term." (Brown, supra, 218 Cal.App.4th at p. 1228.) Thus, in Brown, unlike here, "there could have been no possible valid reason, tactical or otherwise, for trial counsel to permit his client to admit a strike he did not suffer." (Ibid.) Second, unlike in Brown, the People here are not conceding defendant's prior conviction for assault with a deadly weapon is not a "serious" or "violent" felony conviction within the meaning of the Three Strikes law. Further, there is no evidence here to suggest the People could not prove defendant's prior conviction for assault with a deadly weapon is a valid strike or that there was any ambiguity as to whether the prior conviction was an assault with a deadly weapon. (See People v. Plager (1987) 196 Cal.App.3d 1537, 1543-1544 [the defendant suffered clear prejudice by counsel's failure to inform him district attorney could not prove prior strike allegation].)
Even assuming that counsel acted unreasonably by not obtaining the certified record of defendant's prior conviction for assault with a deadly weapon prior to advising defendant to plead guilty, defendant has failed to show she was prejudiced by counsel's conduct. For defendant to be successful on the second prong of the Strickland test, she must show that a reasonable probability exists that, but for counsel's incompetence, she would not have pleaded guilty and would have insisted, instead, on proceeding to trial. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1420.) " 'In determining whether a defendant, with effective assistance, would have accepted [or rejected] the 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. In this context, a defendant's self-serving statement . . . [regarding whether] with competent advice he or she would [or would not] have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.' " (Id. at p. 1421, italics omitted, citing In re Alvernaz (1992) 2 Cal.4th 924, 938.)
Had defendant proceeded to trial, and had the prosecution chosen to seek maximum penalties, defendant faced a 12-year state prison sentence. The plea bargain, on the other hand, assured a four-year prison term and dismissal of the six prior prison term enhancements. Furthermore, defendant's prior conviction for assault with a deadly weapon is a serious felony within the meaning of the Three Strikes law. Under the Three Strikes law, a prior conviction is a "serious" felony for sentencing enhancement purposes if it is a crime listed in section 1192.7, subdivision (c). (§ 667, subd. (d)(1).) Proposition 21, which went into effect in March 2000, amended section 1192.7, subdivision (c), and added a number of felonies to the serious felony list, including assault with a deadly weapon. Proposition 21 added subdivision (c)(31) to section 1192.7's list of serious felonies. As of March 8, 2000, a conviction for assault with a deadly weapon under section 245, subdivision (a)(1), now qualifies as a serious felony whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. (§§ 1192.7, subd. (c)(31), 667, subd. (d)(1), 1170.12, subd. (b)(1); People v. James (2001) 91 Cal.App.4th 1147, 1151 (James); People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).) "[I]f a defendant's current offense was committed on or after the effective date of Proposition 21, a determination whether the defendant's prior conviction was for a serious felony within the meaning of the three strikes law must be based on the definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on March 8, 2000 [the effective date of Proposition 21]." (James, at p. 1150.)
Section 1192.7, subdivision (c)(31), now provides that any "assault with a deadly weapon [or] firearm . . . in violation of Section 245" is a serious felony strike, without regard to whether the conviction was as a perpetrator or as an aider and abettor.
Here, defendant committed her current offense on January 7, 2015. Therefore, even though her prior assault with a deadly weapon conviction was committed in 1985, it is still a serious felony under the Three Strikes law. Moreover, although there is no "record of conviction" relating to defendant's prior serious felony conviction, there is no ambiguity as to whether the prior conviction was an assault with a deadly weapon. (See, i.e., Delgado, supra, 43 Cal.4th at pp. 1063, 1065 [the California Supreme Court held that the notation on the abstract of judgment, " '245(A)(1)' " as " 'Asslt w DWpn' " was sufficient to support a finding that the conviction was a serious felony]; People v. Luna (2003) 113 Cal.App.4th 395, 397-398 [abstract of judgment sufficient when it described the crime as " 'ASSLT GBI W/DLY WPN' "], disapproved in part in Delgado at p. 1070, fn. 4 ["Any implication in Luna that . . . an abstract of judgment that contains ambiguous references to both prongs of [section 245, subdivision (a)(1)] can nonetheless be sufficient evidence of a serious felony, is . . . incorrect, and Luna will be disapproved to that extent."]; People v. Banuelos (2005) 130 Cal.App.4th 601, 605 [abstract of judgment describing the offense as " 'ASSAULT GBI W/DEADLY WEAPON' " insufficient because it referred to both methods of violating the statute (disagreeing with Luna)].) Defendant does not dispute the fact she was previously convicted of assault with a deadly weapon or that the information specifically charged her of having previously been convicted of the "crime of ASSAULT WITH A DEADLY WEAPON, a serious and violent felony, in violation of Penal Code section 245, subdivision (a), subsection (1), within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1)." In fact, at the taking of the plea hearing and again at the hearing on the motion to withdraw her guilty plea, defendant admitted that she was convicted on October 11, 1985, of assault with a deadly weapon in violation of section 245, subdivision (a)(1). Furthermore, at the motion to withdraw the guilty plea hearing, the prosecutor presented a "969(b)" "package," which contained defendant's abstract of judgment "depicting assault with deadly weapon conviction." The prosecutor showed the 969(b) package to counsel representing defendant at the motion to withdraw plea hearing after counsel indicated she did not have the package. In addition, the prosecutor stated that he would be "happy to provide a certified copy of [defendant's] 969(b) that has her abstract of judgment depicting assault with deadly weapon conviction." The trial court inquired, "245(a)(1) or deadly weapon?" The prosecutor responded, "245(a)(1), and it specifies assault with a deadly weapon."
The trial court did not rule on the prosecutor's request to admit defendant's 969(b) package into evidence. --------
Based upon our examination of the entire record, we conclude defendant fails to show that defendant was prejudiced by counsel's alleged deficient conduct in failing to investigate the prior conviction for assault with a deadly weapon before she accepted the plea offer. Defendant cannot show that a reasonable probability exists that, but for counsel's alleged incompetence, she would not have pleaded guilty and would have insisted, instead, on proceeding to trial. Notably, defendant was nervous and fearful of receiving more time in prison. As such, when the People offered a plea deal consisting of only four years, defendant believed such a deal was reasonable, and chose to accept it, despite her counsel's desire to proceed to trial. If defendant rejected this plea offer, and proceeded to trial, her exposure in prison was 12 years. In light of defendant's desire to minimize her prison time, she fails to persuade us that it is reasonably probable she would have forgone the favorable outcome she obtained by pleading guilty, and instead insisted on proceeding to trial whereupon she risked a far greater prison sentence, but for counsel's alleged incompetence.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.