Opinion
H046056
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL HACKETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR-17-01129)
After pleading no contest to a violation of Health and Safety Code section 11352, subdivision (a), defendant Michael Hackett filed a motion to withdraw his plea under Penal Code section 1018. Hackett claimed that his plea resulted from ignorance about the crime and coercion by his defense counsel who allegedly threatened to withdraw from the case if Hackett did not enter the plea. The trial court denied Hackett's motion because it found the evidence did not support Hackett's claim.
On appeal, Hackett argues that the trial court abused its discretion by denying his motion. Further, Hackett contends that his defense counsel provided prejudicially ineffective assistance by threatening to withdraw if the case proceeded to trial. We reject Hackett's claims and affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Circumstances of the Offense
Because Hackett was convicted by plea, the facts underlying his offense are taken from the preliminary hearing.
On the evening of July 1, 2017, San Benito County Sheriff's Sergeant Ricky Uribe was working in plain clothes at the Hollister Independence Rally. While waiting in line to enter a bar with two fellow officers, Commander Richard Westphal and Agent Kearns, Uribe saw Hackett holding a small, Ziplock-style sandwich baggie that had come from Hackett's cargo shorts. Hackett scooped a white, powder-like substance from the baggie using an object that looked like a credit card or driver's license. Hackett then pressed the card to the noses of two men and a woman, who snorted the substance. Hackett placed the baggie back into his cargo shorts. Uribe informed Westphal of Hackett's conduct as it was happening.
Commander Westphal observed Hackett's actions, in part. Westphal saw Hackett provide the white powder on a card to one of the men. Thereafter Westphal engaged the man in a brief conversation. Westphal said to the man, " 'That must be some good shit.' " The man, who had watery eyes and was coughing, responded, " 'yeah.' "
After Hackett entered the bar, officers detained him, searched him, and found the plastic baggie in his shorts. The baggie contained approximately 0.184 grams of cocaine.
B. Procedural History
In August 2017, the San Benito County District Attorney filed a complaint charging Hackett with violating Health and Safety Code section 11352, subdivision (a). Hackett retained defense counsel Brian Worthington to represent him.
The trial court conducted a preliminary hearing on the complaint on October 24, 2017. Daniel Bamberger, John Moore, and Amanda Appling testified for the defense at the preliminary hearing. All three said they were in line with Hackett on July 1 and denied that Hackett provided them cocaine. Bamberger and Moore testified that they did not see Hackett in possession of cocaine. Bamberger did not recall having a conversation with someone during which he replied " 'yes' " to the question " 'that must be good shit?' "
Private investigator Gerard Dudek also testified for the defense. Dudek examined the substance in the plastic baggie at the Hollister police station. Dudek testified that the substance was hard to the touch and more crystal than powder. Based on his training and experience, most people would chop the crystal form of cocaine into a finer powder before ingesting it through the nose.
At the conclusion of the preliminary hearing, the trial court held Hackett to answer on the charge.
On October 25, 2017, the district attorney filed an information charging one felony count alleging Hackett unlawfully transported, imported into California, sold, furnished, administered, or gave away, or offered to transport, import into California, sell, furnish, administer, or give away, or attempted to import into California or transport cocaine (Health & Saf. Code, § 11352, subd. (a)).
On January 17 or 18, 2018, approximately three months after the preliminary hearing, the prosecution provided the defense discovery from a federal wiretap that implicated Hackett in the July 1 incident. In a recorded telephone conversation that occurred on July 2, 2017 (the day after the Hollister Independence Rally), Hackett told the target of the wiretap about being arrested after Hackett had given the target " 'a bump on the card' " while standing in line at a bar. Hackett said to the target, " 'Do you know when we were fucking standing in line, and I gave you that fucking bump on the card?' "
The target of the federal surveillance is not identified in the record. Based on assertions made by counsel at the sentencing hearing, he was not one of the three people who had testified as part of Hackett's defense case at the preliminary hearing.
On January 23, 2018, Hackett entered a no contest plea to the sole count of the information. (Health & Saf. Code, § 11352, subd. (a)).
At the change-of-plea hearing, the trial court questioned Hackett about the charged offense. The trial court said, "Mr. Hackett, do you understand pursuant to the complaint filed August 2nd, 2017, you are charged with a felony violation of Health & Safety Code 11352(a) which is generally entitled transportation or sale of a controlled substance, but I think based on the preliminary exam that was heard in this Court the allegations are that you were in possession of a controlled substance, that being cocaine, and were furnishing that substance to others, resulting in a form of distribution of that controlled substance. [¶] [M]r. Hackett, you are aware of the charge against you and the facts that support that charge [in the information filed on October 25]?" Hackett replied, "Yes, your honor."
The trial court also asked Hackett, "in entering [this] plea you have done so after consultation with your attorney?" Hackett said, "Yes." The trial court asked Hackett whether he was "prepared at this point in time to allow [the court] to question [Hackett] regarding the consequence of that plea?" Hackett again said "Yes."
The trial court informed Hackett "I have indicated to you that I consider this a felony probation case in which situation you will be given felony probation. [¶] If for some reason in reading the pre-sentence probation report there is a determination by me that you should not receive felony probation, do you understand that you have the right to withdraw your plea; is that correct?" Hackett responded, "Yes, sir." The trial court asked Hackett "Other than that promise have any other promises been made to you to cause you to enter this plea on this morning's date?" Hackett answered, "No, sir."
When asked by the trial court if "any threats [had] been made or do you consider anyone to have engaged in conduct that in your opinion deemed of a threatening nature and caused you to enter the plea that you are entering on today's date?" Hackett responded, "No, sir." Following the plea colloquy, the trial court accepted Hackett's plea as knowing and voluntary.
On February 27, 2018, the trial court approved the substitution of Lawrence Biegel as Hackett's defense counsel. Several weeks later, Hackett's new defense counsel filed a motion to withdraw Hackett's no contest plea. The motion asserted that prior defense counsel, Worthington, "contested whether Mr. Hackett had told [Worthington] the full truth about his activities on the day of his arrest," and "Worthington made it clear to Mr. Hackett that if he didn't enter a plea of guilty or no contest to the one count in the Information, [Worthington] would no longer represent him." Because of Worthington's threat to withdraw, Hackett "felt he could not protest and raise as a defense the true facts of the case." The motion also asserted that Hackett was ignorant of the true nature of the charged crime and did not "know[] that he was actually pleading no contest to distributing drugs, which Mr. Hackett denies doing."
Hackett submitted a declaration in support of his motion. Hackett declared that he met with Worthington on January 19, 2018, and Worthington "informed" him that, based on "new evidence he had received," Worthington did not believe Hackett had been honest with him regarding his possession of cocaine. According to Hackett, Worthington "then told [Hackett] he would no longer represent [Hackett] if [Hackett] did not enter a plea to the crime charged against [Hackett] in the Information."
Hackett also stated in his declaration, "In Mr. Worthington's haste to close the matter, he failed to inform me that I was pleading to a crime which involved distributing cocaine. He simply said I needed to accept the plea, or he would not represent me. Based on the language used by Mr. Worthington, I believed Health & Safety Code § 11352(a) applied to me as I had I [sic] 'transported' the cocaine from the alley into the bar. I was ignorant to the fact that, under California law, 'transporting' cocaine legally means that I intended to sell or distribute it. . . . I never sold or distributed cocaine, nor did I intend to."
After the January 19 meeting with Worthington, Hackett asked his friend and attorney, Jennifer Rosenthal Iverson, to speak with Worthington before Hackett changed his plea. Hackett said Iverson spoke to Worthington on January 20, 2018, and Worthington confirmed that he would withdraw if Hackett was "unwilling to consummate the proposed plea agreement." Hackett averred that, "[b]ased upon Mr. Worthington's insistence and apparent urgency, and the significant financial investment I had already made into his firm, I felt I had no choice but to enter a plea of " 'no contest.' "
Hackett declared further that he was "ignorant of the true nature of the plea, and that the plea itself is not an accurate reflection of what factually took place on the date of [his] arrest." Regarding the July 1 incident, Hackett explained that while waiting in line he saw two men he knew snort some cocaine they had scooped from a plastic baggie with their driver's licenses. One of the men handed the baggie to Hackett, and he also snorted some cocaine. Hackett then put the baggie in the pocket of his shorts. Hackett declared that he "did not disperse [the cocaine] to anyone else in any capacity."
Iverson, who was representing Hackett on unrelated matters relating to his business interests, also provided a declaration. Iverson declared that Hackett called her on January 20 and reported that Worthington was very upset with him and threatened to withdraw as his attorney if he did not enter a plea of no contest or guilty to the pending charge. At Hackett's request, Iverson called Worthington. According to Iverson, Worthington was upset with Hackett because Worthington "felt Mr. Hackett had not told him the truth about a material matter which had come to his attention as a result of wiretap information provided him by the prosecution." Worthington "told [Iverson] that, as a result, he felt Mr. Hackett had no choice but to enter a plea to the pending charge and, if Mr. Hackett was unwilling to do so, he was compelled to withdraw from his representation in the case." After the conversation with Worthington, Iverson called Hackett and told him about Worthington's comments to her.
The trial court held a hearing on Hackett's motion to withdraw his plea. Hackett's new defense counsel Biegel "submit[ted] it on the declaration plus applicable argument." The prosecutor presented Worthington as a witness in opposition to the motion.
Worthington testified that after he received the incriminating wiretap recording on January 18, 2018, he spoke with Hackett about it "at least three times, maybe four or five," before Hackett entered his plea on January 23. Worthington and Hackett "had a detailed conversation about what the path forward in [Hackett's] case would be. That conversation included what [Worthington's] ethical duties were, based on the new evidence that [Worthington] received did include [sic] a discussion that if a particular path was chosen moving forward that might force me to withdraw." Worthington informed Hackett "it may be tactically advantageous for [Hackett] to have a new attorney come in at that point in time." Worthington advised Hackett to "accept the offer given by the People and accept the indicated portions of the sentence that the Court gave." Worthington testified that his "memory of [his] discussions with the People certainly was that the People would not be opposed to felony probation, would not argue for state prison." Hackett accepted Worthington's advice "as opposed to availing himself of the opportunity to substitute a new attorney at that time."
Worthington did not believe that he coerced or put Hackett under duress or created a sense of urgency with respect to the plea. Worthington and Hackett had "an open and honest conversation about the facts of [Hackett's] case, the new discovery, the impact . . . that [their] tactical decisions at the prelim[inary hearing] would have going forward in light of the new discovery, [Hackett's] options of whether to enter the plea or not and instead to continue for [sic] at trial -- what the trial might look like given the new evidence that [they] received. Whether it would be appropriate for [Worthington] in that situation to proceed to a trial or whether it was a better idea for [Hackett] to move forward with the new attorney. [¶] [Worthington and Hackett] discussed all of this in detail including what [Health and Safety Code section] 11352 encompasses as the elements of the crime." When asked by the prosecutor whether Worthington informed Hackett "of what Health & Safety Code 11352(a) entitled [sic]," Worthington replied, "[m]any, many times, verbally and in writing."
Worthington testified, "I don't believe that I created a sense of urgency. In fairness I did have a conversation with Mr. Hackett about my perception of the People's attitude in light of the new evidence. I—when discussing what the offer was with Mr. Hackett and what the indications were from the Court I certainly discussed the indications on a given day could change later. [¶] [I]t would not be out of the question or shocking that if either the People or the Court's attitude about the new evidence changed that the penalty later down the road could potentially be more serious. [¶] So I don't believe that is creating a sense of urgency. I think I advised him about the status of cases can change, [sic] and that was partly why I was advising that he enter the plea."
Worthington acknowledged that it "probably is fair to say at certain points in those conversations I was upset given the information that was revealed and the history of conversations leading up to that point." But Worthington "certainly never made any threats towards Mr. Hackett that I, you know, anything to the effect of do this or else or anything like that. I am certain that I discussed with him [my] ethical duties, I am certain I discussed with him the issues that may be to his tactical advantage. I absolutely never threatened him." Worthington and Hackett "specifically talked about what a trial might look like and how [they] could possibly present the defense going forward in light of the new discovery."
Prior to receiving the new discovery, Worthington had spoken with the prosecutor about four or five times about a potential plea to a misdemeanor offense but the "People's position was a flat no. [¶] And then the discovery of the new evidence did not provide [Worthington] with any reason to believe that position was going to change." Worthington believed the wiretap recording was "destructive to the defense that [Hackett] wanted to present."
On cross-examination, Worthington said he was not particularly concerned whether the newly revealed wiretap recording put Worthington in a bad light. "I was concerned with whether or not the defense that we had presented at preliminary hearing potentially created new criminal exposure for Mr. Hackett and his witnesses." Worthington testified he did discuss with Hackett "whether it might be a good idea for [Hackett] to substitute a new attorney who could essentially come into the case with a clean slate in front of the Court and the D.A. and not have the baggage of having presented this defense at preliminary hearing that appeared to be contradicted by that evidence."
Worthington disputed that he would have told Iverson that he felt Hackett had "no choice" but to enter a plea to the pending charge. Worthington stated in his experience it is common for his clients to tell him that that they have "no choice" when discussing a plea offer. Worthington testified, "And I always push back against that language, I always tell my clients 'you have a choice, you have an absolute right to a trial I am telling you what I think your best options are.' [¶] So I do not believe I would have said to Ms. Rosenthal [Hackett] has no choice." Otherwise, Worthington stated that the "general substance" of what Iverson declared about what Worthington told her "would be fair."
If Hackett had "declared unequivocally [that] he wanted to go to trial, [Worthington] would have talked to him about what that trial would have looked like and . . . what limitations would be placed on [Worthington] for calling certain witnesses or presenting certain defense theories based on [Worthington's] ethical obligations." Worthington "in fact did talk to [Hackett] about whether he would want to proceed to trial with the limited information that [Worthington] would be able to present based on [his] ethical duties or whether he wanted to substitute a new attorney who might not be limited by the knowledge that [Worthington] had at that point."
When asked by Hackett's new counsel, "Isn't it fair that the choice -- the choice was going to trial with someone else or plead with [Worthington]?," Worthington replied "No, that was not the choice."
Worthington believed there were witnesses he "could not call because [he] could not present people who were subject to [perjury]." Worthington and Hackett discussed whether it was possible to present a defense theory at trial that did not run afoul of Worthington's ethical obligations and whether Worthington believed such a defense "would be fruitful"—which Worthington did not. Worthington could not recommend that Hackett proceed to trial "based on the evidence as it stood at that moment, and [Worthington] believed the plea bargain was fair in light of the evidence that had been discovered to [the defense] and [he] advised [Hackett] enter that plea."
On the day Hackett entered his no contest plea (January 23, 2018), Worthington and Hackett had a detailed discussion about "whether [Hackett] wanted to enter that plea and why [Worthington] was providing him that advice." Hackett was equivocal about taking Worthington's advice both when they first spoke on January 18, and on the day Hackett entered his plea. Worthington testified that the recitation of the July 1 incident in Hackett's declaration "is a different story than Mr. Hackett told" Worthington prior to and after the preliminary hearing.
The trial court denied Hackett's motion to withdraw his plea. The court found that there "was a discussion between client and attorney, the options were reviewed and Mr. Hackett accepted his, [sic] at his attorney's urging, although not at his insistence, the option of entering a plea incriminating himself as to the single count of the information. [¶] . . . I am not convinced that there was mistake or inadvertence or misunderstanding on Mr. Hackett's behalf that would justify withdrawing his admission of responsibility." The court explained further, "And the evidence is[,] considering the plea and the prelim exam testimony[,] there were different avenues or routes that could be pursued. And Mr. Hackett with the advice of his attorney Mr. Worthington decided to go a certain direction, and the fact that Mr. Hackett had some reluctance at the time and has even greater reluctance at this point in time subsequent to the entry of the plea doesn't mean that that plea was improperly entered. So I'm going to find there is no sufficient evidence to support the vacating of the plea."
At the subsequent sentencing hearing, the trial court suspended imposition of sentence and placed Hackett on formal probation for three years with conditions, including 120 days of incarceration. Hackett filed a timely notice of appeal and a request for a certificate of probable cause. The trial court granted the certificate.
II. DISCUSSION
Hackett contends that the trial court abused its discretion by denying his motion to withdraw his plea. Hackett argues that he "only pleaded in the face of his attorney's threat to withdraw" from the case if it proceeded to trial. Hackett claims that "he acted under duress, . . . there existed potential defenses to the offense charged, . . . [he] diligently sought relief, and . . . the prosecution identified no resulting prejudice [from withdrawal of the plea]." Alternatively, Hackett contends that his defense counsel provided prejudicially ineffective assistance by making a threat to withdraw from the case.
For the reasons set forth below, we find no error in the trial court's denial of Hackett's motion and no ineffectiveness in the representation provided by Hackett's original defense counsel.
A. Motion to Withdraw the No Contest Plea
A court may permit a guilty or no contest plea to be withdrawn "for a good cause shown." (Pen. Code, § 1018; People v. Archer (2014) 230 Cal.App.4th 693, 702.) " ' "Good cause" means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence.' " (People v. Dillard (2017) 8 Cal.App.5th 657, 665 (Dillard); see also People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
An appellate court reviews the denial of a motion to withdraw a plea for an abuse of discretion. (People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson); People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The "reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (Ibid.) "An abuse of discretion is found if the [trial] court exercises 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.) " '[W]hen a trial court's decision rests on an error of law, that decision is an abuse of discretion.' " (Patterson, at p. 894.)
In the present case, we discern no abuse of discretion by the trial court in its denial of Hackett's motion to withdraw his plea. Hackett's original defense counsel, Worthington, testified about multiple conversations he had with Hackett after the prosecutor provided discovery of the wiretap recording and before Hackett entered his plea. Worthington specifically discussed with Hackett the facts of the case, the effect of the new discovery, the possible paths Hackett could take moving forward on the case, the prosecution's current plea offer, Worthington's ethical obligations and their potential effect on the defense that Worthington could present at a trial, and the tactical advantage that could ensue if another lawyer took over Hackett's defense.
Contrary to Hackett's claim that Worthington coerced him to enter the plea by threatening to withdraw from the case if he did not do so, the evidence demonstrated that Worthington discussed with Hackett his options regarding the plea and trial and provided Hackett advice based on the present circumstances so that Hackett could make an informed decision whether to enter a plea. Worthington's testimony amply supported the trial court's finding that Worthington and Hackett reviewed the options and Hackett accepted Worthington's "urging"—not "his insistence"—that Hackett enter the plea. The evidence further supported the trial court's finding that Hackett did not enter his plea based on mistake, inadvertence, or a misunderstanding of his options.
During their discussions about the case, Worthington told Hackett that he might be forced to withdraw from the case or that it might be advantageous for Hackett to obtain a new lawyer depending on the path chosen for defending the case. Worthington's withdrawal was not a certainty but a possibility if Hackett did not take the plea and decided to go to trial. Worthington specifically disputed that Hackett's choice was going to trial with another attorney or entering a plea with Worthington. Worthington said, "No, that was not the choice."
Although the focus of a Penal Code section 1018 inquiry is "what the defendant knew when entering the plea" (Patterson, supra, 2 Cal.5th at p. 897), the trial court did not abuse its discretion when it rejected Hackett's declaration that Worthington "told [Hackett] he would no longer represent [Hackett] if [Hackett] did not enter a plea" and Hackett "felt [he] had no choice but to enter a plea of 'no contest.' " Worthington's testimony and the plea colloquy substantially supported the trial court's contrary finding regarding Hackett's options and Hackett's understanding of them. "The trial court was not bound to accept and give credence to the affidavits submitted in support of the motion." (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) Furthermore, the trial court is the exclusive judge of credibility. (Ibid.)
We note that other parts of Hackett's declaration are inconsistent with information in the trial record. For example, Hackett's declaration asserted that he "was ignorant to the fact that, under California law, 'transporting' cocaine legally means that I intended to sell or distribute it." However, at the change of plea colloquy, the trial court had specifically informed Hackett that "based on the preliminary exam that was heard in this Court the allegations are that you were in possession of a controlled substance, that being cocaine, and were furnishing that substance to others, resulting in a form of distribution of that controlled substance." The trial court asked Hackett "you are aware of the charge against you and the facts that support that charge?," and Hackett replied "Yes, Your Honor."
We are not persuaded by Hackett's argument that the record demonstrates "undisputed evidence of coercion and duress" such that the trial court committed "legal error" in denying the motion. Worthington testified that he and Hackett discussed Worthington's potential withdrawal from the case and how withdrawal might be tactically advantageous for Hackett. Worthington's testimony contradicted both Hackett's claims regarding coercion and Worthington's alleged binary stance regarding his withdrawal. By its ruling, the trial court credited Worthington's recounting of the discussions between Hackett and himself over Hackett's and Iverson's version as stated in their declarations. The trial court's determination that Hackett was not coerced here was supported by substantial evidence and was not an arbitrary, capricious, or a patently absurd exercise of discretion.
Hackett argues that People v. Young (1956) 138 Cal.App.2d 425 (Young) supports his claim of error. The situation in Young, however, was not like that in this case. In Young, "the defendant was informed by his attorney immediately preceding the time for trial to commence that said attorney was ill prepared to proceed with the trial due to the fact that said attorney had not been paid sufficient sums to properly prepare for said trial and that said attorney would have to try said case from the seat of [his] pants." (Id. at p. 426, internal quotation marks omitted.)
Here, in contrast to Young, Hackett's choice between entering a plea and going to trial was not so stark. Worthington explained the possible scenarios to Hackett. Worthington provided Hackett information and advice about his options and how proceeding to trial with the intent to present certain defenses could conflict with Worthington's ethical obligations. Worthington's conduct was not like that of the lawyer in Young, who abandoned his ethical obligations to his client by vowing to try the case " 'from the seat of [his] pants.' " Further, that Hackett was equivocal and reluctant to enter the plea does not establish that the plea was made under duress or involuntary. (See People v. Ravaux (2006) 142 Cal.App.4th 914, 919, citing People v. Urfer (1979) 94 Cal.App.3d 887, 892.) "A plea may not be withdrawn simply because a defendant has changed his or her mind." (Dillard, supra, 8 Cal.App.5th at p. 665.).)
Hackett's reliance on federal cases and cases from other states also is unavailing. Hackett's case does not equate to a coercive situation in which defense counsel tells his or her client that he or she will withdraw from the case unless the client pleads guilty.
Finally, we reject Hackett's argument that, "[b]ecause [he] had a potential defense to the [Health and Safety Code] section 11352 charge, the trial court abused its discretion by denying him the opportunity to withdraw the plea." The first of the two "potential viable defenses" Hackett claims existed is based on his account of the July 1 incident as set forth in his declaration. There, Hackett admits that he snorted cocaine but denies that he " 'disperse[d] it to anyone else in any capacity.' " Of course, Hackett could have continued to press his denial at a trial, and a jury would have decided whether the prosecution proved his guilt in the face of that denial. Nevertheless, in response to Hackett's argument here, we observe that the strength of Hackett's alleged defense is dubious given that it conflicted directly with the preliminary hearing testimony of Sergeant Uribe and Commander Westphal. Moreover, Hackett's denial is significantly undermined by his recorded admission that he gave the target of the wiretap a " 'bump on the card' " while standing in line.
Hackett's second alleged defense is premised on an apparent misinterpretation of the evidence and elements of Health and Safety Code section 11352, subdivision (a) (hereafter section 11352(a)). Hackett claims that a "person who brings the drugs to the party - the supplier - commits a violation of section 11352(a), but the individual who simply assists another's personal use does not." Hackett's argument fails to account for the plain application of section 11352(a) to "every person who . . . furnishes, administers, or gives away . . . any controlled substance . . . ." (Health & Saf. Code, § 11352, subd. (a), italics added.)
" 'Furnish,' " as used in section 11352(a), "means to supply by any means, by sale or otherwise." (Health & Saf. Code, § 11016 [furnish has same meaning as provided in Bus. & Prof. Code, § 4048.5; that section was repealed and "furnish" is now defined at Bus. & Prof. Code § 4026].) Based on the definition of furnish, a reasonable jury could conclude Hackett violated section 11352(a)'s prohibition on furnishing a controlled substance when he scooped the cocaine out of the baggie and put it to the noses of other people to ingest. (See People v. Cornejo (1979) 92 Cal.App.3d 637, 660 [section 11352(a) violated where no sale occurred but defendant provided an undercover officer with a sample of heroin].)
For these reasons, we conclude that the trial court acted within its discretion in denying Hackett's motion to withdraw his no contest plea.
B. Ineffective Assistance of Counsel
Hackett argues that he entered his no contest plea as a result of defense counsel's ineffective assistance. Specifically, Hackett argues that "by threatening to withdraw if [Hackett] did not plead no contest, Mr. Worthington unduly burdened [Hackett]'s plea decision and rendered deficient performance." Hackett also claims that he was prejudiced because he would not have pleaded no contest and would have insisted on going to trial, but for defense counsel's ineffectiveness.
"The test for ineffective assistance of counsel is a demanding one." (People v. Acosta (2018) 28 Cal.App.5th 701, 706.) The claim requires a showing that defense counsel's performance fell below an objective standard of reasonableness and that the defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The defendant bears the burden of demonstrating deficient performance by a preponderance of the evidence. (In re Thomas (2006) 37 Cal.4th 1249, 1257.) "[A] reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) To establish prejudice based on incompetent advice regarding whether to plead guilty, the defendant must show "a reasonable probability that, but for counsel's incompetence, [he or she] would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934; see also Lafler v. Cooper (2012) 566 U.S. 156, 163.)
Here, Hackett fails to demonstrate that Worthington's performance was deficient. Worthington testified that he and Hackett discussed the case and Hackett's options extensively and on multiple occasions before Hackett entered his no contest plea. Worthington disputed that Hackett's only choice was to enter a plea with Worthington or go to trial with another attorney. Worthington provided Hackett advice about the case and the plea offer and explained how proceeding to trial could conflict with Worthington's ethical obligations and raise the potential for Worthington's withdrawal. For the reasons explained above, Worthington did not coerce Hackett into pleading no contest to the charged crime and accepting the prosecutor's promise not to oppose felony probation or Hackett's eligibility for alternatives to incarceration. The record demonstrates that Worthington acted as a reasonable and conscientious advocate would when he advised Hackett about his options and their potential consequences under the circumstances. (Cf. In re Vargas (2000) 83 Cal.App.4th 1125, 1136-1142 [petitioner made prima facie showing that his defense counsel rendered ineffective assistance with regard to his guilty plea by failing to investigate the case, failing to prepare for trial, failing to discuss the circumstances of the case with petitioner, and making coercive statements and misrepresentations to petitioner].)
Having concluded that Hackett has not satisfied the performance prong of the Strickland standard, we need not address whether Hackett can demonstrate the requisite prejudice for his claim of ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 687.)
For these reasons, we reject Hackett's claim that he was deprived of his right to the effective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.