Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FWV033897. Mary E. Fuller, Judge.
ORIGINAL PROCEEDING: Petition for writ of habeas corpus. Mary E. Fuller, Judge.
Sachi Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
On July 25, 2006, defendant, represented by counsel, pleaded guilty to one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) (count 1) and one count of committing elder or dependent abuse (§ 368, subd. (b)(1)) (count 2). Defendant also admitted that he had inflicted great bodily injury on the victim within the meaning of section 12022.8 and that he had committed great bodily injury on a person over the age of 65 within the meaning of section 368, subdivision (b)(2). In return, the remaining charge and enhancement allegations were dismissed, and defendant was promised a stipulated total prison term of 20 years in state prison. Defendant was subsequently sentenced in accordance with his plea agreement. Defendant appealed.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing.
Around 11:00 p.m. on February 4, 2005, the victim was walking home from a grocery store in the City of Ontario after having bought a fifth of vodka. As she walked home, a car pulled up to her and the driver, identified as defendant, said, “Hi.” She asked defendant if he knew how to fix phones as her own home phone was inoperable. Defendant said, “Sure.” The victim then directed him to park and invited him into her apartment.
Defendant parked his vehicle and followed the victim to her apartment. She brought him into her bedroom where the broken phone was. When she turned her back to him, defendant hit the victim in the head with the fifth of vodka. He also hit her on the face. Defendant thereafter proceeded to rape her. The victim, who was 67 years old at the time, received several stitches to her head and suffered from a black eye and broken nose.
On July 19, 2006, an amended information was filed charging defendant with forcible rape (count 1); elder or dependent abuse (count 2); and assault with a deadly weapon or by means likely to produce great bodily injury (count 3). The information also alleged numerous enhancement allegations.
On the morning of trial, defendant pleaded guilty to counts 1 and 2 and admitted two of the great bodily injury enhancement allegations, in return for the dismissal of the remaining allegations and a stipulated prison term of 20 years. The court accepted the plea and set the matter for sentencing.
On October 30, 2006, defendant filed a motion to withdraw his guilty plea claiming it was involuntary and that he did not understand what was happening. Specifically, defendant declared that his attorney had failed to explain the plea agreement to him and that he pleaded guilty because he was tired and nervous during the plea discussion.
On November 17, 2006, the court denied defendant’s motion to withdraw the plea, finding that defendant understood the proceedings and had entered into the plea agreement freely, voluntarily, and knowingly. Defendant was thereafter sentenced in accordance with the plea agreement as follows: the upper term of 8 years on count 1, plus the middle term of 5 years for the great bodily injury allegation attached to that count, plus the upper term of 4 years on count 2, plus the middle term of 3 years for the great bodily injury enhancement attached to that count.
II
DISCUSSION
A. Defendant’s Appeal
Defendant obtained a certificate of probable cause and appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
We have now concluded our independent review of the record and find no arguable issues.
B. Defendant’s Writ Petition
Defendant also filed a petition for writ of habeas corpus, claiming, as he did in the court below, that his counsel incorrectly advised him and forced him into pleading guilty, and therefore he should be allowed to withdraw his guilty plea. The writ petition does not contain any new supporting documents to advance his claim and includes the same documents the trial court had before it ruled on defendant’s motion to withdraw his plea.
In an order filed on January 11, 2008, we informed the parties that the petition for writ of habeas corpus “will be considered with the appeal” in case No. E041863 “for the sole purpose of determining whether an order to show cause should be issued.”
“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.)
“In any case, when considering a claim of ineffective assistance of counsel, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ [Citation.] A defendant must prove prejudice that is a ‘“demonstrable reality,” not simply speculation.’ [Citations.] Prejudice requires ‘a reasonable probability that a more favorable outcome would have resulted . . ., i.e., a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) In other words, a defendant demonstrates prejudice by showing that “a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.” (In re Resendiz, supra, 25 Cal.4th at p. 253.)
Here, defendant has failed to establish a reasonable probability that, had he accurately been informed and advised, he would not have accepted the plea bargain offered. In fact, defendant does not even declare that had he been adequately advised, he would not have pled guilty. His affidavit is thus insufficient in and of itself to establish prejudice. (In re Alvernaz (1992) 2 Cal.4th 924, 945.) Defendant’s declaration does not even contain any statement that he was prejudiced by his counsel’s actions. Furthermore, assuming for the sake of argument that defendant’s claim of his counsel’s alleged advisements prejudiced him, there is no evidence to suggest that he would have obtained a more favorable disposition considering the severity of the offenses and his potential sentence. We cannot determine prejudice without a more complete factual record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Defendant has presented no evidence confirming his counsel’s actions or establishing the actual advice given to him. He has offered no explanation as to how he might have been able to avoid conviction had he gone to trial, e.g., by discussing specific defenses on which he might have prevailed or detailing how the evidence might have exonerated him. (In re Resendiz, supra, 25 Cal.4th at p. 254.) Absent such evidence, we are bound to reject defendant’s claim of ineffective assistance of counsel.
Based upon our independent review of the declarations and the trial court proceedings, we conclude that defendant has failed to establish a credible, independently corroborated prima facie showing of a reasonable probability that he would not have accepted the plea offer but for his trial counsel’s alleged inaccurate advice. Thus, we conclude defendant has failed to establish prejudice. Such failure is fatal to his claim that he was deprived of the effective assistance of counsel guaranteed by the federal and California Constitutions.
III
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: KING J., MILLER J.