Opinion
A134719
12-19-2012
THE PEOPLE, Plaintiff and Respondent, v. JAQUAN RICE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco City and County Super. Ct. No. 10017434)
Defendant pled guilty to one count of offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Subsequently, defendant moved to withdraw his guilty plea pursuant to Penal Code section 1018, claiming that he did not understand that a possible consequence of his plea was a three-year term of probation. The trial court denied his motion, and he appeals. In addition to claiming that the court abused its discretion in denying his motion to withdraw the plea, he maintains that his trial counsel provided ineffective assistance of counsel for failing to explain to him that receiving credit for time served did not mean that he would not have to be on probation once released. We are not persuaded by defendant's arguments and affirm the judgment.
BACKGROUND
The underlying facts, which are briefly summarized and not relevant to the issues on appeal, are from the preliminary hearing on June 25, 2010. An officer in plain clothes approached defendant and his codefendant at a bus stop shelter. The officer asked the codefendant for a "solid," which is slang for rock cocaine. The officer offered the codefendant marked money. After taking the money, the codefendant stated that defendant's "got my work." Defendant handed the officer a rock of suspected base rock cocaine wrapped in plastic. Immediately after the sale, officers arrested defendant without incident and they apprehended his codefendant after a brief struggle.
On July 7, 2010, an information was filed charging defendant with one count of offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)).
On September 8, 2010, defendant announced that he wished to change his plea and plead guilty to one charge of violating Health and Safety Code section 11352, subdivision (a). At defendant's change of plea hearing, his counsel informed the court that he had advised defendant of the consequences of the guilty plea and told him that the potential punishment for the offense was three, four, or five years in state prison. Counsel maintained that he further advised defendant that "[u]pon release from custody, he may be placed on parole for a period of four years from the date of his initial parole." He added that he told defendant that if parole were revoked, he could be imprisoned on a parole violation for up to one year.
Counsel for defendant also told the court that he advised defendant of the following: "You must submit your person, place of residence, vehicle, and any area under your control to search by any peace officer or probation officer at any time of day or night with or without a warrant and with or without reasonable or probable cause. Defendant is not to possess any controlled or unlawful drugs. He shall submit to drug testing and counseling as deemed appropriate by the Adult Probation Department." Defendant's attorney confirmed that he told defendant that he might be required to pay up to $50 per month for "probation supervision."
The court addressed defendant and commented that defendant had heard the statements made to the court by his attorney. The court asked defendant whether these statements were "true in all respects." Defendant responded, "Yes." The court proceeded to announce each constitutional right defendant was giving up and defendant responded affirmatively each time he was asked whether he was personally giving up this right. The court advised defendant of the following: "Do you realize if you are granted probation and violate any terms of that probation you may be sent to state prison without a trial?" Defendant answered, "Yes."
Defendant's attorney then asked to interject the following: "There are things I wanted to state on the record, that is, we did have a discussion in chambers between the court and counsel and that it was acknowledged that [defendant] has a minimum criminal record and the most grievous is marijuana charges back in the 90s, and that he has no other things on his record." Counsel commented that credit for time served was an appropriate disposition unless the court "is made aware, and we stipulate to this, other factors that the court was aware of that would somehow bump up the credit for time served to something more substantial." Counsel noted that the court was "not obligated to follow" the proposed credit for time served.
The court then asked defendant what his plea was to violating Health and Safety Code section 11352, a felony, and defendant replied, "Guilty." The court accepted defendant's plea and found that he had been "informed of his rights and voluntarily and intelligently waived those rights and entered his plea of guilty well knowing the consequences of that plea." The court stated that the matter would be "referred to [the] Adult Probation Department for preparation of a presentence report" and ordered defendant "to cooperate with the probation department . . . ."
On May 3, 2011, defendant moved to withdraw his guilty plea. Defendant asserted that he "did not understand that he would be subjected to probation supervision for three years, [and] that he would be required to report to a probation officer and generally continue an intense relationship with the criminal justice system." He claimed that he entered his plea "wrongly" believing "that after entering this plea, he could walk away from 850 Bryant Street and be basically done with this case." Defendant claimed that he was innocent of the charge.
The trial court held a hearing on defendant's motion to withdraw his plea on December 7, 2011. The court noted that this was a plea open to the court. The court emphasized that it had advised defendant that he could be sent to state prison as a result of his plea, and state prison was a more serious punishment than being placed on probation. Defense counsel argued that there was nothing in the record indicating that defendant agreed to be on probation for a specific amount of time. The People responded that the court was not obligated to inform defendant of a specific sentence but simply had to make him aware of the potential consequences of his plea.
The trial court denied defendant's motion to withdraw his guilty plea. The court suspended imposition of sentence and placed defendant on three years probation.
Defendant filed a timely notice of appeal on January 25, 2012. On February 29, 2012, the trial court granted defendant's request for a certificate of probable cause.
DISCUSSION
I. Denial of the Request to Withdraw the Plea
Defendant claims that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. He maintains that he established good cause to withdraw his plea based on his not understanding that he could be placed on probation for three years. He asserts that the court stated he would receive a sentence of credit for time served and he believed that indicated that he would not have an "intense relationship with the criminal justice system."
Penal Code section 1018 provides that the trial court "[o]n application of the defendant at any time before judgment . . . may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." This provision further states that "[t]his section shall be liberally construed to effect these objects and to promote justice." (Pen. Code, § 1018.) The defendant must establish by clear and convincing evidence valid grounds for withdrawing a guilty plea, and "[t]he provisions of [Penal Code] section 1018 . . . should only be utilized upon a strong and convincing showing of the deprivation of legal rights by extrinsic causes." (People v. Palmer (1942) 49 Cal.App.2d 567, 572.) "Mistake, 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.) "A plea may not be withdrawn simply because a defendant has changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
Even after a showing of good cause, the decision whether to grant a request to withdraw a guilty plea is discretionary when the defendant has legal representation. (People v. Palmer, supra, 49 Cal.App.2d at p. 572.) Thus, we review the trial court's ruling for an 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.)
Here, defendant claims that the court did not explain that he would be subjected to probation conditions once he received a disposition of credit served. Any advisement regarding a sentence's range is a judicially declared rule of criminal procedure, and does not involve a constitutional right, and therefore defendant must establish prejudice in order to warrant reversal. (People v. Hellgren (1989) 208 Cal.App.3d 854, 858 (Hellgren) [no prejudice when defendant informed that the upper term of her potential sentence was three years in prison and not told that court could also sentence her to the lesser prison options of two years or 16 months].) Reversal is normally "required only if the court fails to inform the defendant of information that makes the plea bargain less attractive than it appeared to be without the omitted information." (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734.)
In the present case, defendant has completely failed to demonstrate prejudice. The record establishes that defendant's attorney confirmed at the change of plea hearing that defendant was advised that a consequence of his plea was that he faced a potential punishment of a prison term of three, four, or five years. Defendant confirmed at the hearing that his attorney had provided him with this information. Since a prison term of three, four, or five years is significantly less attractive than probation for three years, which is what he received, defendant cannot establish prejudice. (See People v. Goodwillie, supra, 147 Cal.App.4th at p. 734.)
Defendant attempts to distinguish his situation from the one in Hellgren, supra, 208 Cal.App.3d 854, by arguing that, unlike the facts in Hellgren, he relied on the court's indicated disposition. In Hellgren, the court failed to advise the defendant about the lower potential prison terms. (Id. at p. 858.) He argues that Hellgren did not involve reliance or an indicated disposition.
Defendant's argument lacks merit. The holding in Hellgren was not dependent upon the specific facts of that case but was based on the well-settled rule that a defendant must demonstrate prejudice when given inadequate or erroneous advice with regard to the potential consequences of a plea. (See In re Moser (1993) 6 Cal.4th 342, 345) In the present case, defendant cannot establish prejudice because he received probation, which was indisputably more desirable than the possible prison terms he was told he could receive as a consequence of his plea; thus, he was willing to plead guilty knowing he could get prison terms. The information defendant alleges was omitted would not have made the plea bargain more attractive or favorable to him. (See also People v. Johnson (1977) 66 Cal.App.3d 197, 200 [since defendant accepted possibility of a life term, he could not have been prejudiced by not being informed that he might become eligible for parole in seven years].)
The only evidence in the record having any bearing on defendant's claim that he would not have pled guilty had he known he would be subjected to probation is defendant's argument in the trial court that he entered his plea based on the belief that "he could walk away from 850 Bryant Street and be basically done with this case." He also argued in the lower court that he pled guilty because of "considerations of his codefendant." In his affidavit, defendant stated that the foregoing factual assertions were true and that he was not guilty of the charged offense.
Defendant's selfserving declaration does not demonstrate prejudice. The court is "not bound to give full credence to the statements in defendant's affidavit in support of his motion to withdraw his pleas of guilty[,] even though they are uncontradicted[,] because of defendant's obvious interest in the outcome of the proceeding" (People v. Beck (1961) 188 Cal.App.2d 549, 553), and "[w]here two conflicting inferences may be drawn from the evidence, it is the reviewing court's duty to adopt the one supporting the challenged order" (People v. Hunt (1985) 174 Cal.App.3d 95, 104). Here, defendant's affidavit contradicts the record. As we discuss more fully above, the record establishes that he was clearly told that a possible consequence of his plea was probation. He was also advised that probation would include a number of conditions, and these conditions prevented him from being "done with this case."
Furthermore, the record simply does not support defendant's claim that he was not told that a possible consequence of his plea was that he would be on probation and subject to probation conditions. At the change of plea hearing, defense counsel confirmed that he advised defendant that he would be subject to a search condition in which his "person, place of residence, vehicle, and any area under [his] control" could be searched "by any peace officer or probation officer at any time of day or night with or without a warrant and with or without reasonable or probable cause." He also told defendant that he might be required to pay up to $50 per month for probation supervision.
Defendant dismisses the foregoing information provided by his trial counsel as "legal boilerplate, verbiage," and claims, without any citation to the record, that he did not believe this information applied to his case. Defendant's argument is entirely without merit. Defense counsel unequivocally stated that he told defendant, "You must submit your person, place of residence, vehicle, and any area under [defendant's] control" to a search by a probation officer. (Italics added.) Defense counsel made it absolutely clear that this condition applied to defendant. Furthermore, the trial court asked defendant the following: "Do you realize if you are granted probation and violate any terms of that probation you may be sent to state prison without a trial?" Defendant answered, "Yes." Clearly, defendant was told and he confirmed that he understood that the court might grant him probation.
The record also does not support defendant's claim that the court stated an indicated disposition of credit for time served. Defendant was expressly told that his sentence might not be credit for time served. At the beginning of the change of plea hearing, the prosecutor stated this was a plea open to the court and that the People opposed "a credit for time served disposition in the case" because the case was not at the pretrial stage and not, in the People's opinion, an early disposition. At the end of the change of plea hearing, defendant's counsel argued that he believed the appropriate disposition was that defendant should get credit for time served. Defense counsel acknowledged, while defendant was present at the hearing, that the court was "not obligated to follow" the proposed credit for time served.
We note that even if the record did support defendant's argument that the court gave an indicated disposition of credit for time served, the court is not required to give that indicated sentence. "An indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made." (People v. Delgado (1993) 16 Cal.App.4th 551, 555.)
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We thus conclude that defendant has failed to demonstrate prejudice and the record, contrary to his argument, establishes that he was told that he might be subject to probation conditions as a result of his plea bargain. Accordingly, the trial court did not abuse its discretion in denying his motion to withdraw his plea of guilty.
II. Claim of Ineffective Assistance of Counsel
Defendant contends that his counsel did not provide him with effective assistance of counsel with regard to his guilty plea because his attorney did not explain to him that if he received credit for time served, he still could be placed on probation.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A claim of ineffective assistance of counsel requires the defendant show both that trial counsel's performance was deficient and as a result of that deficient performance defendant suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668.) In the context of a guilty plea, in order to show ineffective assistance of counsel a defendant has the burden to prove by a preponderance of the evidence: (1) his or her counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) he or she suffered prejudice from counsel's deficient performance in 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." (Hill v. Lockhart (1985) 474 U.S. 52, 59, fn. omitted; see also In re Resendiz (2001) 25 Cal.4th 230, 239, 248-254.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (Ledesma, at p. 218, quoting Strickland, at pp. 693-694.)
Here, as already discussed, the record establishes that defendant's attorney did advise him that he could be subject to probation conditions as a direct consequence of his plea. Thus, defendant cannot establish that trial counsel's performance was deficient. Moreover, as discussed above, even if his counsel had not informed him of the possibility of probation, he cannot establish prejudice because he accepted the plea bargain knowing that he could serve a prison term as a consequence of his plea.
DISPOSITION
The judgment is affirmed.
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Lambden, J.
We concur: _______________
Haerle, Acting P.J.
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Richman, J.