Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD218179 David J. Danielsen, Judge.
McDONALD, J.
Jeovani Jackson appeals a judgment following his guilty plea to one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and his admission he committed that offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). On appeal, he contends the trial court abused its discretion by denying his motion to withdraw his plea.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 15, 2009, a felony complaint was filed alleging Jackson committed the offenses of attempted murder and assault with a firearm and that he committed those offenses for the benefit of a criminal street gang. Jackson pleaded not guilty and denied the enhancement allegations. On April 30, an amended felony complaint was filed alleging the same offenses and adding an enhancement allegation that Jackson intentionally and personally discharged a firearm and proximately caused great bodily injury (§ 12022.53, subd. (d)). Jackson pleaded not guilty and denied the enhancement allegations.
On April 30, a preliminary hearing was held on the amended felony complaint against Jackson. San Diego Police Detectives Terence Charlot, Duane Malinowski, and Jack Schaeffer testified for the prosecution at the hearing. Charlot testified that on January 12 he interviewed Jorkim Rose at a hospital in the course of investigating a shooting on Imperial Avenue in San Diego. Rose told Charlot that earlier that night he was walking to a store on Imperial Avenue when he saw a group of four males cross the street and walk toward him. They stared at him. The fourth male addressed Rose, stating: "What's up?" Rose did not recognize him, so he continued walking. That fourth male then stated: "Nigger, I'm going to kill you—I'll kill you right now." Rose turned around and then recognized the fourth male was Jackson, with whom Rose had previously been in custody at three different juvenile facilities. Jackson then pulled out a semi-automatic handgun and started shooting at Rose. When Rose felt the first shot hit him, he ran to a friend's nearby house and called police.
Rose sustained gunshot wounds to the left side of his neck, upper left shoulder, outer left thigh, and inner left thigh. At the hospital, Rose told Charlot that Jackson was a light-skinned black male wearing a burgundy shirt with sparkles on it, black shorts, and a black baseball cap with "SD" on it. He also said Jackson had a soft cast on his left hand. Rose told Charlot he thought Jackson was affiliated with the O'Farrell Park gang (O'Farrell). Rose also said that a very young, light-skinned black male told Jackson after the shooting: "Come on Jeovani." When Charlot presented Rose with a photographic lineup, Rose identified Jackson's photograph as depicting the shooter, stating he was "100 percent sure" that was the person who shot him. Rose also identified a photograph of Shaundel Jones as depicting the other young, light-skinned black man.
Malinowski investigated the shooting and interviewed Jackson's brother, Jordan Jackson (Jordan). Jordan told him he knew Jackson had a firearm on two occasions. The first time was the day before Jackson accidentally shot himself in the hand with a firearm. After that accident, Jordan took the firearm and hid it in some bushes in a park. However, Jordan later showed Jackson where he hid the firearm and Jackson recovered it. The second time Jordan saw Jackson with a firearm was on the day of the instant shooting. He saw Jackson carrying a semi-automatic firearm as he, Jackson, and Jones were walking to a friend's house. While Jordan was getting a haircut at the friend's house, Jackson and Jones left to walk to a store. When they returned one and one-half hours later, Jones told Jordan that they had a problem with someone and that Jackson shot someone. Jackson then told Jones to shut up. Jordan said Jackson was wearing different clothes when he returned, but was still wearing a black baseball cap with "SD" on its front.
Malinowski participated in a search of Jackson's home. In a bedroom that contained paperwork with Jackson's name on it, he found a black baseball cap with "SD" on it, a gray bandanna, a gray athletic glove, a can of gray spray paint, and medical gauze bandages. In another bedroom, Malinowski found three photographs with young men "throwing down" gang signs. In a kitchen drawer, he found a newspaper article discussing a gang-related shooting involving either the Lincoln Park gang (Lincoln Park) or O'Farrell. In the garage, he found a red shirt bearing the words "The T.H.A. Southeast, " which words Malinowski described as gangster "stuff." During his investigation, Malinowski learned Jackson dressed his injured hand with a soft wrap, rather than a hard cast.
Schaeffer testified he found three.38 casings at the site of the shooting. He knew Rose was affiliated with Lincoln Park; Jones was associated with O'Farrell; and Jackson was associated with O'Farrell and the Skyline Piru gang (Skyline). Jackson's moniker is "Jeo." Skyline and O'Farrell were allies and committed crimes to benefit each other. Schaeffer spoke with two San Diego school police officers who told him that on January 10, 2009, there was a fight involving a group of males at Morse High School after a basketball game between Morse High School and Lincoln High School. Some males were "throwing" Lincoln Park gang signs, while other males were saying "this is Piru, " referring to Skyline. Two of the males involved in the fight were Jones, a current student at Morse High School, and Jackson, a former student at that school.
Schaeffer also testified that during a 2004 interview, Jackson and his mother told a probation officer that he (Jackson) was affiliated with Skyline. In 2007, when Jackson was in juvenile hall, he told another probation officer he was affiliated with Skyline. When Jackson was booked into jail for the instant incident, he stated he was a Skyline member.
Malinowski and/or Schaeffer testified that red and gray were colors associated with O'Farrell and that red was also associated with Skyline. Lincoln Park is a rival of O'Farrell and Skyline. The court found the prosecution presented adequate evidence at the preliminary hearing to bind Jackson over on the amended complaint's allegations.
On May 8, 2009, an information was filed charging Jackson with one count of attempted murder of Rose (§§ 664, 187, subd. (a)) and one count of assault on Rose with a firearm (§ 245, subd. (a)(2)). It alleged that in committing the attempted murder, Jackson intentionally and personally discharged a firearm and proximately caused great bodily injury to a person (§ 12022.53, subd. (d)). It further alleged that in committing both offenses Jackson personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). It also alleged Jackson committed both offenses for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)).
On July 7, 2009, Jackson pleaded guilty to assault with a firearm and admitted that in committing the offense he personally used a firearm and inflicted great bodily injury. He further admitted he committed that offense for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. In so pleading, Jackson stipulated to the preliminary hearing transcript as providing the factual basis for his plea. The attempted murder count and related allegations were dismissed on the People's motion.
On November 5, 2009, Jackson (then represented by new counsel, Frank Birchak) filed a motion to withdraw his guilty plea. He sought to withdraw his guilty plea because (1) he was unduly influenced by the fear of a life sentence; and (2) his plea was not based on his free and clear judgment as he was under the influence of psychotropic medications at the time and his counsel told him not to tell the court about that. The People opposed the motion.
On December 22, 2009, the trial court conducted an evidentiary hearing on Jackson's motion to withdraw his guilty plea. Jackson and Pamela Lacher (Jackson's attorney at the time of his plea) testified at the hearing. Following arguments of counsel, the trial court denied the motion. The court then sentenced Jackson to a total term of 20 years in prison.
Jackson timely filed a notice of appeal and a request for a certificate of probable cause. The trial court issued a certificate of probable cause.
DISCUSSION
I
Applicable Law
A
Withdrawal of guilty plea.
Section 1018 provides, in part: "On application of the defendant at any time before judgment..., the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.... This section shall be liberally construed to effect these objects and to promote justice." In general, "[m]istake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. (Ibid.; People v. Nance (1991) 1 Cal.App.4th 1453, 1457.) "A plea may not be withdrawn simply because the defendant has changed his mind." (Nance, at p. 1456.) The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; Nance, at p. 1457.) "A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion." (Nance, at p. 1456; see also Fairbank, at p. 1254 ["A decision to deny a motion to withdraw a guilty plea... is final unless the defendant can show a clear abuse of [the trial court's] discretion."].) "Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (Fairbank, at p. 1254.)
B
Brady duty to disclose.
The constitutional right to due process of law requires that the prosecution disclose to the defense evidence favorable to the defendant and material to guilt or punishment. (Brady v. Maryland (1963) 373 U.S. 83, 86-87.) Evidence is favorable to the defendant if it either helps the defendant (e.g., is exculpatory) or hurts the prosecution (e.g., by impeaching a prosecution witness). (U.S. v. Bagley (1985) 473 U.S. 667, 676; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.) Evidence is "material" under the Brady duty "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (Bagley, at p. 682.) To prove the prosecution has violated its Brady duty, the defendant "must show both the favorableness and the materiality of any evidence not disclosed by the prosecution...." (In re Sassounian (1995) 9 Cal.4th 535, 545.)
In the context of a motion to withdraw a guilty plea on the ground the prosecution violated its Brady duty, withheld evidence is "material" if "there is a reasonable probability that but for the failure to produce such information the defendant would not have entered the plea but instead would have insisted on going to trial. The inquiry is an objective one that is resolved largely on the basis of the persuasiveness of the withheld evidence." (Tate v. Wood (2d Cir. 1992) 963 F.2d 20, 24.)
C
Effective assistance of counsel.
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) 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. (Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Pope, at p. 425.) 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.) "The 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.)
In the context of a guilty plea, "[b]efore deciding whether to plead guilty, a defendant is entitled to 'the effective assistance of competent counsel.' " (Padilla v. Kentucky (2010) ___ U.S. ___ [130 S.Ct. 1473, 1480-1481, 176 L.Ed.2d 284].) Effective assistance of counsel includes "the critical obligation of counsel to advise the client of 'the advantages and disadvantages of a plea agreement.' " (Id. at p. ___ [130 S.Ct. at p. 1484].)
"[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." (Hill v. Lockhart (1985) 474 U.S. 52, 58 (Hill).) Hill stated: "Where, as here, a defendant is represented by counsel during the plea process and enters his 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.) Hill further stated:
"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 would not have pleaded guilty and would have insisted on going to trial.
"In many guilty plea cases, the 'prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." (Hill, supra, 474 U.S. at pp. 59-60, fn. omitted.)
Alternatively stated, "[i]n determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned." (In re Resendiz (2001) 25 Cal.4th 230, 254 (plur. opn. of Werdegar, J.).)
Furthermore, "[i]n 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." (In re Alvernaz (1992) 2 Cal.4th 924, 938; see also In re Resendiz, supra, 25 Cal.4th at p. 253 [a defendant's "assertion that he would not have pled guilty if given competent advice 'must be corroborated independently by objective evidence.' "].)
II
Denial of Motion to Withdraw Guilty Plea
Jackson contends the trial court abused its discretion by denying his motion to withdraw his guilty plea. He argues his guilty plea was not a knowing and intelligent waiver of his constitutional rights because the prosecution committed Brady error by not disclosing to him material, exculpatory evidence that the gunshot residue (GSR) test was positive only as to his left hand. He further argues he was denied effective assistance of counsel because his counsel did not: (1) review, and disclose to him, GSR test results available to her; and (2) disclose to him Rose's witness statement indicating he (Rose) denied gang membership. Jackson also contends the trial court abused its discretion because it did not apply the correct legal standards in ruling on his motion to withdraw his guilty plea.
A
At the evidentiary hearing on Jackson's motion to withdraw his guilty plea, Jackson testified his ability to think on the date of his guilty plea was affected by Remeron, a medication he was taking at the time. He also testified it was not fair that he did not have a copy of Rose's interview at the time of his preliminary hearing, even though he had asked his attorney for all of the discovery in his case. He testified that when his attorney (Lacher) talked to him "in the box" before he pleaded guilty, she told him the GSR results had just come back positive. However, he did not receive a copy of the GSR report that day. After he pleaded guilty, he received a copy of the GSR report, which showed only his left hand tested positive for gunshot residue. He believed that information was important because a person with a cast on his left hand could not fire a gun with his left hand. On recross-examination, Jackson admitted he was shot in (left) hand about two weeks before the instant incident and had a removable soft cast on his hand. A doctor had cleaned his hand wound and dressed it for him. Jackson admitted that when he was arrested after the instant incident, he did not have that soft cast on his left hand, but instead simply had a bandage around that wound. Jackson testified his guilty plea was a mistake because at that time he did not have the information he now had (i.e., at the time of the hearing on his motion).
Jackson does not contend on appeal that the trial court abused its discretion by denying his motion to withdraw his guilty plea on the ground that medication prevented him from making a voluntary, knowing, and intelligent waiver of his constitutional rights. Nevertheless, we note Jackson admitted that at the hearing on his change of plea, he represented to the court that he was not on any medication at the time.
The prosecution called Lacher, Jackson's former counsel, to testify. She testified that Jackson was present during his preliminary hearing. She had Rose's audiotaped statements before that hearing and cross-examined the detective who had documented Rose as a gang member. She stated Jackson had never requested copies of all of the discovery in his case. She nevertheless had discussed with him the discovery and other evidence in his case. She also discussed with Jackson his likelihood of success at trial based on the charges and the evidence, and what the potential consequences and defenses were. Lacher testified that on the day of Jackson's guilty plea, she became aware of the GSR test results. The results were orally provided to her by the prosecutor. She remembered only that the results were positive. She was not provided with an actual copy of the GSR report that day. After Lacher had a chambers conversation with the trial court and prosecutor, she entered the "glass box" where Jackson was. Before she said anything, Jackson commented that he had been in jail for awhile, had seen other cases, and knew he was facing life (in prison). Jackson asked her whether she could "get him a deal, anything that was better than life" before she had mentioned the GSR results. She then told him about the oral representation that the GSR results were positive. Jackson's response was "it sounds like a good idea to take the deal." She discussed the plea offer with him and the fact that he would be facing a life term were he convicted of the charged offenses. On cross-examination, Lacher testified she has never received a copy of the GSR report. She was unaware the GSR test was positive for one hand and negative for the other.
The attorney representing Jackson at the time of the motion (Birchak) argued Jackson's guilty plea was not knowing and voluntary because at that time he was not aware of information regarding meritorious defenses (i.e., that the GSR test results were positive only as to one hand and that Rose's statement denied any gang membership). He argued his medication at the time may also have prevented him from being aware of meritorious defenses. He argued the court should allow Jackson to withdraw his guilty plea because of Jackson's "mistake about the meritorious nature of what the defenses were."
The prosecutor argued that Jackson told his attorney (Lacher) he wanted a plea deal "better than life" even before she mentioned the positive GSR test results. The prosecutor represented to the court: "[R]egarding the gunshot residue report, as an officer of the court, I'll tell the court that the day on the change of plea, I had gotten an oral report from the detective on the case that the lab had produced a gunshot residue report and it was orally reported to them that the report was positive for gunshot residue. That was told to Ms. Lacher in just those terms, nothing more specific. And she related those to [Jackson]." The prosecutor noted that Jackson did not request a continuance of his case to obtain the GSR report. Jackson told his attorney he wanted a plea deal both before and after he learned of the positive GSR test results. The prosecutor refuted the argument of Jackson's counsel that a plea is involuntary if the defendant is unaware of any meritorious defenses, arguing the subsequent GSR report positive for only one hand did not raise any new meritorious defenses not otherwise available to him before he received that report. He argued there was nothing about the GSR report that made Jackson's defenses any more or less meritorious than before.
The trial court began its ruling by discussing the general standard for motions to withdraw guilty pleas. It noted that a defendant has the burden to prove, by clear and convincing evidence, that his plea was the product of something other than a knowing, voluntary, and intelligent waiver of his constitutional rights. It further noted that a defendant can withdraw a plea when there are problems with medication or when there are material issues not adequately discussed with the defendant. The court then found there was no meaningful deficiency in Jackson's mental status at the time of his guilty plea, nor did his medication at that time adversely affect him. The court then addressed the discovery Jackson did not have at the time of his plea, stating:
"As to the somewhat unclear items that he learned factually later in discovery to the extent that he may have first become aware that during some interview the victim denied gang membership, it is not at all clear how that provided a defense to these charges and change[d] what is substantial evidence with which Mr. Jackson had been presented prior to the change of plea would indicate that this was a gang-motivated shooting episode and likewise, although, there may be some lack of detail in terms of the G.S.R. that had been reported to him and the nature of facing that evidence, I don't see how that substantially increases the possibility of a meritorious defense in light of the facts and circumstances.
"I am simply not convinced either by the... medication... or mental health related issues or the subsequent information that there is anything other than a knowing and intelligent waiver of constitutional rights at the time.
"Mr. Jackson, in light of all of the evidence, made a [shrewd] business decision to accept the People's offer."
Accordingly, the trial court denied Jackson's motion to withdraw his guilty plea.
B
We first address Jackson's assertion that the trial court abused its discretion because it did not apply the correct legal standards in ruling on his motion to withdraw his guilty plea. He argues the court simply focused on whether the GSR test results would have provided him with a meritorious defense, rather than the correct standard of whether it is reasonably probable he would have not pleaded guilty had he been aware of those results, withheld in violation of Brady. He also argues the trial court did not expressly address whether the prosecution violated its Brady duty by not disclosing to him that only his left hand tested positive for gunshot residue.
However, as quoted above, the trial court stated the correct general standard for determining whether a defendant may withdraw a guilty plea. The court noted that a defendant has the burden to prove, by clear and convincing evidence, his or her plea was the product of something other than a knowing, voluntary, and intelligent waiver of the defendant's constitutional rights. Although the court did not expressly state the specific standards that apply in cases in which material evidence is withheld from a defendant in violation of Brady or in violation of the constitutional right to effective assistance of counsel, we nevertheless presume the court was aware of those standards and applied them to the facts in this case. (People v. Coddington (2000) 23 Cal.4th 529, 644 [reviewing court presumes trial court knew and applied the correct statutory and case law], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Woods (1993) 12 Cal.App.4th 1139, 1152 [reviewing court presumes trial court knew and properly applied the law; it is appellant's burden to rebut that presumption by an affirmative showing]; People v. Nance, supra, 1 Cal.App.4th at p. 1456 [reviewing court presumes trial court knew and applied the correct statutory and case law in the exercise of its discretion]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [in the absence of contrary evidence, reviewing court presumes trial court properly followed established law].) We presume the trial court considered and applied the correct standards in determining whether Jackson should be allowed to withdraw his guilty plea based on the purported Brady violation and the purported denial of effective assistance of counsel. Because Jackson does not cite, and we are unaware of, anything in the record affirmatively showing otherwise, we conclude the trial court knew and applied the correct legal standards in deciding his motion to withdraw his guilty plea. (Coddington, at p. 644; Woods, at p. 1152; Nance, at p. 1456; Ross, at p. 913.) To the extent the trial court, in ruling on Jackson's motion, stated the GSR report would not have provided Jackson with a meritorious defense, it was simply refuting the claims to the contrary presented by Jackson's counsel in support of the motion.
C
Jackson also asserts the trial court abused its discretion by denying his motion to withdraw his guilty plea because his plea was not a knowing and intelligent waiver of his constitutional rights based on the prosecution's Brady error in not disclosing to him material, exculpatory evidence (i.e., the GSR test was positive only as to his left hand). Assuming arguendo that the GSR report showing only his left hand tested positive for gunshot residue was exculpatory, we nevertheless conclude the trial court was correct in impliedly finding that GSR report was not material. The trial court impliedly found it was not reasonably probable Jackson would not have pleaded guilty had he known of that exculpatory evidence at the time of his plea. As we noted above, in the context of a motion to withdraw a guilty plea on the ground the prosecution violated its Brady duty, withheld evidence is "material" if "there is a reasonable probability that but for the failure to produce such information the defendant would not have entered the plea but instead would have insisted on going to trial. The inquiry is an objective one that is resolved largely on the basis of the persuasiveness of the withheld evidence." (Tate v. Wood, supra, 963 F.2d at p. 24.)
Based on our review of the record in this case, we conclude the trial court did not abuse its discretion by impliedly finding: (1) Jackson would have pleaded guilty even had he known of the GSR report regarding the positive test only as to his left hand; and (2) the withheld evidence was not sufficiently persuasive to have led Jackson not to plead guilty, much less result in a meritorious defense at trial. At the evidentiary hearing on Jackson's motion, Lacher testified that before she told Jackson anything about the GSR test results, he commented that he had been in jail for awhile, had seen other cases, and knew he was facing life (in prison). Jackson asked her whether she could "get him a deal, anything that was better than life." She then told Jackson about the prosecution's oral representation about the GSR results being positive. Jackson's response was "it sounds like a good idea to take the deal." She discussed the plea offer with him and the fact that he would be facing a life term were he convicted of the charged offenses. The trial court could rationally conclude that because Jackson's decision to plead guilty was based on his desire to avoid a life sentence, it was not reasonably probable that decision would have been any different had he known of the GSR report showing only his left hand tested positive for gunshot residue. Furthermore, the court could rationally conclude the prosecution presented strong evidence during Jackson's preliminary hearing that, if admitted later at trial, would likely have resulted in his conviction of assault with a firearm, if not attempted murder.
The trial court also could rationally conclude that because Jackson was present during the preliminary hearing, he was aware of the relative strength of the prosecution's case in contrast to the relative weakness of his defense(s) and therefore he would have pleaded guilty regardless of whether he knew at the time of his plea that the GSR report showed only his left hand tested positive for gunshot residue. As the trial court noted, that evidence would not likely have provided Jackson with a meritorious defense.
As discussed above, at the preliminary hearing the prosecution presented strong evidence of Jackson's guilt of both assault with a firearm and attempted murder. There had been a recent fight between members of Jackson's gang and Rose's gang. After the shooting, Jordan (Jackson's brother) told Detective Malinowski that Jackson had a firearm on the day of the shooting. Jordan also stated that Jackson and Jones left their friend's house to go to a store. When they returned one and one-half hours later, Jones told Jordan they had a problem with someone and that Jackson shot someone. Jackson then told Jones to shut up. Jordan also told Malinowski that Jackson was wearing different clothes when he returned, but was still wearing a black baseball cap with "SD" on its front. Rose, the shooting victim, positively identified Jackson as the man who shot him. He identified Jackson by name, by describing the clothing and appearance of the shooter (which matched Jackson's), and by identifying him in a photographic lineup. During a search of a bedroom in Jackson's home, police found paperwork with Jackson's name on it and a black baseball cap with "SD" on it. Rose had identified the shooter as having a soft cast on his left hand, and medical gauze bandages were found in Jackson's bedroom. Also, Jackson later admitted at the evidentiary hearing on his motion that a doctor had cleaned and dressed the wound on his left hand, which had been accidentally shot two weeks before the instant incident, supporting a reasonable inference that the gunshot residue later found on his left hand was from the instant shooting rather than from the prior accident. Therefore, assuming arguendo Jackson had known at the time of his guilty plea that the GSR report showed only his left hand tested positive for gunshot residue, the trial court could reasonably conclude that the exculpatory evidence, viewed objectively, would not have provided a persuasive defense to the assault charge (or even the attempted murder charge) and therefore it was not reasonably probable Jackson would not have pleaded guilty had he known of that evidence at the time of his plea. (Tate v. Wood, supra, 963 F.2d at p. 24.)
D
Jackson also asserts the trial court abused its discretion by denying his motion to withdraw his guilty plea because his counsel provided ineffective assistance by not: (1) reviewing, and disclosing to him, GSR test results available to her; and (2) disclosing to him Rose's witness statement indicating he (Rose) denied gang membership. To satisfy Strickland's "prejudice" requirement in moving to withdraw a guilty plea, Jackson must show there is a reasonable probability that, but for counsel's deficient performance, he would not have pleaded guilty and would have insisted on going to trial. (Hill, supra, 474 U.S. at pp. 59-60.) "[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." (Id. at p. 59, fn. omitted.) Alternatively stated, "[i]n determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned." (In re Resendiz, supra, 25 Cal.4th at p. 254.)
Assuming arguendo Jackson's counsel performed deficiently, prior to or at the time of his guilty plea, by not (1) reviewing, and disclosing to him, GSR test results available to her, and (2) disclosing to him Rose's witness statement indicating he (Rose) denied gang membership, we nevertheless conclude the trial court properly concluded there was no reasonable probability that, had his counsel not performed deficiently, he would not have pleaded guilty and would have insisted on going to trial. (Hill, supra, 474 U.S. at pp. 59-60.) The court could have reasonably concluded that, had Jackson's counsel known of the GSR report showing only his left hand tested positive for gunshot residue, her knowledge of that evidence would not have led her to change her apparent recommendation that he accept the plea offer. (Ibid.) In reaching that conclusion, the trial court presumably conducted an objective weighing of the evidence and concluded that GSR report evidence would not likely have changed the outcome of a trial had Jackson not pleaded guilty. (Ibid.; In re Resendiz, supra, 25 Cal.4th at p. 254.) Incorporating herein our summary above of the evidence presented at Jackson's preliminary hearing, we conclude the trial court properly concluded the admission of the GSR report evidence probably would not have resulted in a more favorable outcome for Jackson had he not pleaded guilty and instead insisted on a trial. Accordingly, the trial court did not abuse its discretion by concluding Jackson was not denied effective assistance of counsel when his counsel, prior to or at the time of his guilty plea, did not review, and disclose to him, the GSR report showing only his left hand tested positive for gunshot residue.
Likewise, assuming arguendo Jackson's counsel performed deficiently, prior to or at the time of his guilty plea, by not disclosing to him Rose's witness statement indicating he (Rose) denied gang membership, we nevertheless conclude the trial court properly found there was no reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. (Hill, supra, 474 U.S. at pp. 59-60.) The court could reasonably have concluded that, had Jackson's counsel disclosed Rose's witness statement to him prior to or at the time of his guilty plea, her disclosure (or knowledge) of that evidence would not have led her to change her apparent recommendation that he accept the plea offer. (Ibid.) In reaching that conclusion, the trial court presumably conducted an objective weighing of the evidence and concluded that Rose's witness statement denying gang affiliation would not have likely changed the outcome of a trial had Jackson not pleaded guilty. (Ibid.; In re Resendiz, supra, 25 Cal.4th at p. 254.) As discussed above, at Jackson's preliminary hearing, there was strong evidence that, if presented at trial, would have supported a finding that Rose was affiliated with Lincoln Park. Detective Schaeffer presumably would have testified at trial, as he did at the preliminary hearing, that he knew Rose was affiliated with Lincoln Park; Jones was associated with O'Farrell; and Jackson was associated with O'Farrell and Skyline. The court could reasonably conclude a jury likely would have found Schaeffer's testimony regarding Rose's gang affiliation more persuasive than Rose's witness statement denying gang affiliation. The court could have reasonably concluded the apparent recommendation of Jackson's counsel to accept the plea offer would not have changed had she disclosed to him (or known of) Rose's witness statement denying gang affiliation. Furthermore, the court could have reasonably concluded there was no reasonable probability that Jackson, had his counsel disclosed to him Rose's witness statement, would not have pleaded guilty and would have insisted on going to trial. (Hill, supra, 474 U.S. at pp. 59-60.) Therefore, the trial court properly concluded Jackson did not carry his burden to show, by a preponderance of the evidence, that he was denied effective assistance of counsel. (People v. Ledesma, supra, 43 Cal.3d at p. 218.)
E
We conclude the trial court reasonably concluded Jackson did not carry his burden to show, by clear and convincing evidence, good cause for withdrawal of his guilty plea. (People v. Cruz, supra, 12 Cal.3d at p. 566; People v. Nance, supra, 1 Cal.App.4th at p. 1457.) Accordingly, the court did not abuse its discretion by denying Jackson's motion to withdraw his guilty plea.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.