Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA097961 John A. Torribio, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Pamela C. Hamanaka, Assistant Attorneys General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
I.
INTRODUCTION
Defendant and appellant Ramon Robles appeals from his conviction on two counts of premeditated attempted murder. (Pen. Code, §§ 664/187, subd. (a).) He was sentenced to life in prison plus 25 years to life on count I, and the identical sentence on count III, to run concurrently. Appellant contends the trial court erred in denying his motion for new trial premised on an allegation that he had received ineffective assistance of counsel. Specifically, appellant argues his counsel was ineffective by convincing him to reject a plea offer. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts.
This case involves two separate events that occurred two months apart. In the first, appellant shot Kenneth Cobbs in the abdomen. In the second, appellant shot Alex Copeland in the back.
1. The prosecution case.
a. The attempted murder of Kenneth Cobbs, count I.
On March 13, 2005, at approximately 3:15 p.m., Kenneth Cobbs (Cobbs) was walking behind Norwalk High School on his way home. Around 10 people were gathered on the football field. Appellant (who was 16 years old) and another male approached Cobbs. Cobbs had seen appellant on a number of occasions when Cobbs walked home from his job. Appellant and the other male were both wearing black shirts and tan pants. Appellant asked Cobbs about Cobbs’s gang membership by asking where Cobbs was from. Cobbs replied, “Fuck you,” spit on the ground, and continued walking toward his home. Appellant asked one of his friends on the football field for a gun. Cobbs continued to walk home.
About five to ten minutes later, Cobbs, who was an African-American, was near his home when he noticed appellant riding a small black bicycle. Appellant got off the bicycle, shouted a racial epithet, and pulled a chrome or silver barreled gun from under his shirt. Cobbs began running when he saw the gun. Appellant fired four shots at Cobbs, one of which hit Cobbs in the abdomen. Cobbs called 9-1-1 and thereafter was transported to the hospital.
At the time appellant shot Cobbs, Javier Gonzalez and Tasha Moore were near Cobbs’s home when they heard gunshots. Within seconds, they saw a “young fellow” riding a small bicycle. The youngster was wearing a black short-sleeved shirt and tan pants. He was probably 13 to 15 years of age. He had a gun with a silver barrel.
Cobbs was in the hospital for a week. About one week after he was released, Cobbs saw appellant on the street. Cobbs told his mother that appellant was the person who had shot him.
On April 25, 2005, about a month after the shooting, Cobbs identified appellant as the shooter from a photo lineup. At trial, Cobbs testified he was sure appellant was the man who had shot him.
b. The attempted murder of Alex Copeland, count III.
On May 15, 2005, Alex Copeland, who was 6 feet 2 inches tall and weighed between 290 and 300 pounds, was working as a security guard at the door of a party in Bellflower. At about 12:40 a.m., he left the party with some friends, including Chris Torres. Eighty to 100 people were also leaving the party at that time. As Copeland and Torres approached the corner of Burkhall Avenue and Dalberg Street, they saw some people arguing and fighting, including Joshua Bentrem.
Copeland and Torres tried to break up the fight. Copeland separated the combatants and Torres told everyone to leave. A male hit Torres, called Copeland a racial epithet, and assumed a fighting stance. Copeland tried to punch the male, but missed. Copeland grabbed the man from behind and the two began to fight. The male fell to the ground and Copeland repeatedly punched him. As Copeland was fighting with the male, appellant shot Copeland in the back. Copeland had a clear view of appellant. Appellant and the man ran away. Copeland was taken to the hospital where his spleen was removed. He was in the hospital for three days.
During a May 19, 2005 search of appellant’s home, police found a loaded Jennings.22 caliber chrome handgun in appellant’s bedroom. The police also found boxes of ammunition in appellant’s bedroom and in the living room. The bullet extracted from Copeland during surgery had been fired from the gun found in appellant’s bedroom. Some of the ammunition discovered in appellant’s bedroom was the same design and manufacturer and had the same markings as those in the gun’s magazine.
About a week after the shooting, Copeland picked appellant out of a photo lineup as the person who had shot him. Copeland also identified appellant at a live lineup and at the preliminary hearing. Joshua Bentrem and Anthony Garrido who had seen Copeland shot also identified appellant as the shooter. Bentrem identified appellant in a photo lineup and in a live lineup, and in court.
2. The defense.
a. The attempted murder of Kenneth Cobbs, count I.
Even though Cobbs denied being a gang member, Cobbs admitted to a police officer that he was a Camp Piru gang member. Appellant’s sister (Genevieve Robles), his sister’s boyfriend, and appellant’s mother (Genevieve Franco), all testified that in the late afternoon of March 13, 2005 (when Cobbs was shot), appellant was with them at a restaurant until around 7:00 p.m. They were celebrating his sister’s birthday. They also testified that appellant had been home before the birthday party. A receipt verified that members of appellant’s family ordered dinner from the restaurant that evening, including four non-alcoholic beverages. Appellant’s sister testified that after they had eaten, she had dropped appellant at a friend’s home for about an hour from 7:00 p.m. to 8:00 p.m. Appellant testified he had not been behind the high school on March 13, 2005. Rather, he was home with his family until everyone went out to celebrate his sister’s birthday. Appellant also testified that he did not own a silver bicycle or a firearm.
b. The attempted murder of Alex Copeland, count III.
Michael Gonzalez testified that on May 15, 2005 he had been with appellant. Before entering a party that evening, everyone, including appellant, was patted down to make sure no one had a gun. Edward Ortiz, who weighed 160 pounds, testified he was the person who had called Copeland a racial slur before the two started to fight. According to Ortiz, he had run away when Copeland fell. As he ran from the scene, he bumped into appellant who was down the street. Efren Ochoa testified that he had seen appellant and Ortiz, who had been beaten up pretty badly, outside the party. Ochoa did not see appellant with a weapon.
Appellant testified to the following. On May 15, 2005, he attended a party. He was not carrying a weapon. After the party, he saw a huge number of people outside and he also saw Copeland pummeling Ortiz. Because he was approximately 5 feet 7 inches and 130 pounds, he could not do anything because Copeland was so big. He had seen Jose Hernandez, commonly called “Joker,” shoot Copeland. Appellant did not tell anyone that Hernandez was the shooter because he was afraid. Hernandez died shortly after the shooting, but by that time appellant’s attorney had told him not to speak about the shooting. Ortiz and Ochoa confirmed appellant’s testimony that Hernandez, who had died in 2005 or 2006, was similar in stature to appellant.
Kevin Copeland, Alex Copeland’s father, testified that he had received a telephone call from a number of young women who went to school with Copeland. The women stated that someone was bragging about shooting Copeland.
Appellant’s parents and his sister all testified that they regularly searched appellant’s bedroom and they had never seen a gun. Appellant’s father (Ramon Robles, Sr.) testified he did not live with appellant or appellant’s mother, but frequented their home. Appellant’s father also testified that he had not found a weapon when he searched appellant’s bedroom the day before the police found the gun there. He had taken appellant shooting at the gun range. Some of the bullets in appellant’s bedroom had been saved from the firing range.
B. Procedure.
1. The charges.
Appellant was charged in count I of attempted murder of Kenneth Cobbs (Pen. Code, §§ 664/187, subd. (a)), with allegations that the attempted murder was committed willfully, deliberately, and with premeditation (Pen. Code, § 664, subd. (a)). It was also alleged that appellant personally and intentionally discharged a firearm that caused great bodily injury (Pen. Code, § 12022.53, subds. (b), (c), (d)). Appellant was charged in count III of attempted murder of Alex Copeland (Pen. Code, §§ 664/187, subd. (a)), with allegations that the attempted murder was committed willfully, deliberately, and with premeditation (Pen. Code, § 664, subd. (a)). The information also alleged that appellant personally and intentionally discharged a firearm that caused great bodily injury (Pen. Code, § 12022.53, subds. (b), (c), (d)).
In counts II and IV, appellant was charged with assault with a firearm (Pen. Code, § 245, subd. (a)(2)), along with a number of enhancements, with respect to Cobbs and Copeland, respectively. The jury would later be instructed that it could not convict appellant on counts I and III and also convict appellant on counts II and IV.
2. Pretrial events.
On June 1, 2007, the trial was continued because appellant’s counsel, Tony Cogliandro, had a prepaid vacation.
On June 11, 2007, attorney Cogliandro did not appear because he was having vision problems. The next day, attorney Cogliandro explained to the trial court that his physician had informed him that his eye problems should subside in about a month. Appellant waived his speedy trial rights and urged the trial court to continue the case so attorney Cogliandro could represent him. The trial court trailed the case until the next day. The prosecutor (Deputy District Attorney Brock Lunsford) noted the seriousness of the charges. The prosecutor also stated that he had not been able to have meaningful negotiations, although he had approached defense counsel at the prior hearing and suggested counsel talk to appellant about a plea. The prosecutor wanted appellant to understand that the “indeterminate sentences [could be taken] off the table in exchange for a plea by [appellant] that would allow him to get out of prison when he was a young man....” The prosecutor continued “I certainly -- just by virtue of the fact he is a young man right now, I don’t want him to get into something here where, at the end of it, he’s doing 50 years to life and steps back and says, why didn’t somebody -- I could have pled for something else. [¶] As long as I’m saying it now, I’m hoping he’s listening to me, his mother’s listening to me. I am willing to negotiate on this case... at least if he’s willing to tell me something realistic he’d be willing to plead to and do time for, I’d be willing to present it to my boss, as long as it’s something that would be acceptable to the District Attorney’s Office. [¶] That being said, it’s up to him. We can go to trial and do all this. If we do go to trial and he does get convicted, I want for myself to feel that he knew where I was coming from....” When the trial court asked appellant if he had “[caught] all that[,]” appellant responded, “Yes, sir.” The court stated it would not order a jury panel in order to allow the parties to discuss a negotiated disposition.
The following morning, June 13, 2007, the prosecutor stated that appellant’s mother was in the courtroom. Deputy District Attorney Lunsford wanted the entire family in the courtroom so they would hear what he had to say about a plea offer. Appellant’s counsel, attorney Cogliandro, indicated he had not had the opportunity to discuss an offer with appellant as the prosecutor had just made the offer “a moment ago.” Attorney Lunsford acknowledged that the offer had just been communicated to defense counsel. Attorney Lunsford stated he wished to place an offer on the record and noted that appellant faced two consecutive life-plus 25 years-to-life terms. Attorney Lunsford stated that the district attorney’s office would drop the premeditation and deliberate allegation, and offer a determinate sentence of 25 years on each count, to run concurrently, if appellant pled guilty to two counts of attempted murder and admit a Penal Code section 12022.53, subdivision (c) enhancement on both counts. Attorney Lunsford stated that this would mean appellant would not face life in prison. The trial court informed appellant that he would have the remainder of the day to discuss the offer with his counsel and his family.
The trial court informed appellant that he was “facing the rest of [his] life behind bars. The alternative is 25 [years].” The trial court denied defense counsel’s request for an additional continuance, but guaranteed him that he could have the rest of the day to discuss the plea offer with counsel and his parents. The court reiterated that going to trial exposed appellant to an enormous sentence. The court informed appellant, “You’re a young man. There’s a possibility you’ll get out when you’re a young man. If you get convicted on this case, there are life allegations. You would not get out of state prison. It’s up to you.” The prosecutor reiterated the 25 year offer and stated that there would be no further negotiations – appellant could take the offer or the matter could proceed to trial.
On June 14, 2007, the trial court indicated it did not believe that a letter from attorney Cogliandro’s ophthalmologist dated the prior day constituted good cause to continue the case. The case was transferred to another courtroom for trial. In the new courtroom, Attorney Lunsford joined in attorney Cogliandro’s motion to continue the trial based on defense counsel’s medical condition. The case was continued to July 31, 2007 at which time the defense indicated it was ready to proceed.
3. The conviction.
Jury selection began on August 9, 2007. Opening statement to the jury was made on August 13, 2007.
Jury deliberations began on August 28, 2007. On August 29, 2007, the jury convicted appellant in count I of premeditated attempted murder of Kenneth Cobbs (Pen. Code, §§ 664/187, subd. (a)) and found the firearm enhancements true (Pen. Code, § 12022.53, subds. (b), (c), (d)). The jury convicted appellant in count III of premeditated attempted murder of Alex Copeland (Pen. Code, §§ 664/187, subd. (a)) and found the firearm enhancements true (Pen. Code, § 12022.53, subds. (b), (c), (d)). Pursuant to the court’s instructions, the jury did not address counts II and IV, as these counts were charged in the alternative. The trial court dismissed these counts.
On November 8 and 9, 2007, attorney Cogliandro did not appear. On November 28, 2007, appellant appeared with newly retained counsel.
4. Post trial proceedings.
On April 21, 2008, appellant, through his new counsel, filed a motion for new trial. In addition to other grounds, appellant contended he had been denied effective assistance of counsel because attorney Cogliandro convinced him to reject the plea offer.
A hearing on the motion was held. On December 19, 2008, the trial court denied appellant’s new trial motion.
5. Appellant’s sentence.
On October 5, 2007, prior to the denial of the new trial motion, a probation officer reported that appellant “says many deals have been offered to him, however, he did not wish to accept any deals because he did not shoot anyone.”
On January 8, 2009, the trial court sentenced appellant to life in prison plus 25 years to life on count I, and the identical sentence on count III, which was imposed concurrently. The court also imposed fines, ordered appellant to provide DNA samples, and awarded appellant presentence credit.
Appellant appealed.
III.
DISCUSSION
Appellant received effective assistance of counsel.
Appellant contends the trial court erred in denying the new trial motion because his counsel was ineffective in convincing him to reject the plea offer. This contention is not persuasive.
A. Additional facts.
As stated above, after he was convicted, appellant filed a motion for new trial arguing he had been denied effective assistance of counsel because attorney Cogliandro did not properly advise him with respect to the plea offer and instead persuaded him to reject the offer by “virtually [guaranteeing] an acquittal, and vehemently [opposing] the determinate offer....” Appellant claimed that had he received proper advice, he could have accepted the plea offer.
The trial court held an evidentiary hearing. The prosecutor (Deputy District Attorney Lunsford), attorney Cogliandro, appellant, and appellant’s mother (Genevieve Franco) testified.
Attorney Lunsford testified he was initially contacted by appellant’s mother, who requested he make a plea offer to her son. Attorney Lunsford then talked to his supervisor, who authorized the determinate sentence of 25 years. Attorney Lunsford also testified to the following. He discussed the plea with appellant’s mother and a young woman whom he believed was appellant’s sister. Appellant’s mother was shocked at the length of time appellant would have to serve if he accepted the plea. He placed the offer on the record. Attorney Cogliandro told Attorney Lunsford he had conveyed the offer to appellant, but that appellant rejected it. Thereafter, appellant’s father told him that the prosecutor had no evidence to prove the case, such as fingerprint evidence.
Attorney Cogliandro testified to the following. He was in a lot of pain as he had cancer. He did not have an independent recollection of speaking to appellant about the plea. He might, however, have some notes that would refresh his recollection. It was his habit and custom to discuss with his criminal clients the evidence and the “pros and cons” of a plea offer. After a continuance, attorney Cogliandro took the stand again. He testified that he could not find any notes, but he did recall a number of conversations he had had with appellant, appellant’s mother, appellant’s sister, and appellant’s father about the offer. He relayed the 25 year determinate offer to appellant and suggested appellant talk to his mother and father. He thought the offer had been increased to 26 years. While appellant’s father thought appellant should accept the offer, appellant’s mother was adamant that it should be rejected because appellant was innocent. He explained what might happen at trial and that if he were convicted, appellant would spend his entire life in prison. He urged appellant to discuss the offer with his parents and he declined to make the decision, as suggested by appellant’s mother. His fee would not change if the case went to trial because he had been fully paid.
Attorney Cogliandro also testified to the following. Appellant denied culpability in both shootings and denied having or carrying a gun. Appellant had alibi witnesses to the first shooting, and witnesses at the second shooting who would testify appellant was not the shooter and had not carried a gun. Appellant insisted Hernandez (Joker) had shot Copeland. He had explained to appellant the evidence, including that the initial evidence relating to the Cobbs shooting and the fact that Cobbs was a gang member, might make the evidence on count I weak. He also discussed with appellant the jury instructions and possible defenses, including self-defense. He also explained that even if appellant admitted shooting Copeland in self-defense and avoided a conviction on count I (involving Cobbs), the jury might conclude that appellant carried guns and shot people. He had provided an analysis of the case to appellant, including that the bullet extracted from Copeland matched the gun found in appellant’s bedroom. He never told appellant the charges were beatable and he never pressured appellant into rejecting the offer. He read every police report and the entire file with appellant on more than one occasion. He explained that if appellant was convicted on only one count, he would still go to prison for 25 years to life. Appellant said he did not want to do the 25 years. Appellant rejected the offer after appellant consulted with him, appellant’s mother, and possibly appellant’s sister. Appellant’s father was “of a different opinion.”
Lastly, attorney Cogliandro testified he was now suffering from cancer, but that he did not believe his medical problems had affected his representation of appellant. He was not taking any medications during trial.
Appellant testified to the following. Attorney Cogliandro reviewed with him the police reports, a little, and reviewed the facts. Attorney Cogliandro stated he would not go to trial and beg for an offer from the prosecutor. Appellant was unaware of the sentence exposure until the prosecutor made the offer in court on June 13, 2007. After the in-court discussion, he understood the ramifications of the deal. After the prosecutor made the offer, he went downstairs and discussed it with his father, his mother and attorney Cogliandro. Attorney Cogliandro stated that no one would believe Cobbs because Cobbs was a gang member. Attorney Cogliandro told appellant he would be stupid for considering the deal because there was a good chance he would be acquitted. Appellant’s parents were present when attorney Cogliandro said that taking the deal would be the biggest mistake of his life. Attorney Cogliandro never advised him to take the 25 year determinate term. Rather, attorney Cogliandro said that if he took the deal, he would never get out as he would have two strikes, and would inevitably catch a third strike.
Appellant’s mother (Genevieve Franco) testified that she had pleaded with Deputy District Attorney Lunsford to resolve the matter through a plea agreement as she did not want her son to have a life sentence. She had spoken with appellant, appellant’s father, and attorney Cogliandro about the 25 year offer made by Attorney Lunsford. She had spoken about the offer with appellant and attorney Cogliandro while appellant was in lock-up, and attorney Cogliandro talked appellant out of accepting the offer. As she understood it, attorney Cogliandro would have earned $15,000 for representing appellant, but earned an additional $10,000 if the case went to trial. She was not present for all conversations attorney Cogliandro had with appellant.
The trial court denied the new trial motion. In doing so, the court made the following factual findings. The transcript of the June 13, 2007 hearing confirmed that the offer was made and while there was no official record that appellant had rejected the offer that is clearly what had occurred. The fact that attorney Cogliandro made more money because the case went to trial was not relevant as otherwise, every defense counsel would be considered “nefarious.” The motion came down to a credibility call and it was impossible to corroborate attorney Cogliandro’s testimony about what had occurred in private. The trial court concluded that “there was some kind of significant offer made and... there was a conversation with the family about that offer. And the court believes that the totality of the circumstances are that the offer was conveyed and [appellant] made the decision to go [to] trial.”
B. Allegations of ineffective assistance of counsel involving the rejection of a plea offer and our burden of review.
“Although [the decision to accept or reject a plea offer] ultimately is one made by the defendant, it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain. The defendant can be expected to rely on counsel’s independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.] [¶] The pleading -- and plea bargaining -- stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.]” (In re Alvernaz (1992) 2 Cal.4th 924, 933-934; accord, In re Resendiz (2001) 25 Cal.4th 230, 239.) “[W]here counsel’s ineffective representation results in a defendant’s rejection of an offered plea bargain, and in the defendant’s decision to proceed to trial... a claim of ineffective assistance of counsel [arises].” (In re Alvernaz, supra, at p. 934.)
In the context of a defendant’s assertion that he or she received ineffective assistance of counsel in rejecting a proffered plea bargain, the defendant “must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” (In re Alvernaz, supra, 2 Cal.4th at pp. 936-937, citing, among others, Strickland v. Washington (1984) 466 U.S. 668, 687.)
“ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.]’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
“To assist us in deciding whether the first of the two prongs of this test has been established, we turn to the State Bar Rules of Professional Conduct and the American Bar Association’s Standards for Criminal Justice... which provide guidelines for determining the prevailing norms of practice relating to advising a defendant as to the decision whether to reject an offered plea bargain and proceed to trial. Under these guidelines, defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction. [Citations.] We caution that a defense attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel’s judgment, will not, without more, give rise to a claim of ineffective assistance of counsel. [Citations.] Such claim ‘depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.’ [Citations.]” (In re Alvernaz, supra, 2 Cal.4th at p. 937, fn. omitted.)
“The first prong, deficient performance, is established if the record demonstrates that counsel’s performance fell below an objective standard of reasonableness under the prevailing norms of practice. [¶] If the first prong is established, the second prong of prejudice must be met in order to demonstrate ineffective representation. To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.” (In re Alvernaz, supra, 2 Cal.4th at p. 937.)
“We note the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain. ‘It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence....’ [Citation.] Furthermore, such a claim may be difficult or impossible to refute directly. The attorney-client privilege may protect against disclosure of the precise information given a defendant by counsel during the plea negotiation process until the defendant decides to waive that privilege, possibly years later, when claiming he or she was incompetently counseled. At that time, defense counsel’s recollection of the communications and advice given the client and the client’s response to that advice, if unrecorded, may well have faded or disappeared entirely. Thus, in reviewing such a claim, a court should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain.” (In re Alvernaz, supra, 2 Cal.4th at p. 938, fn. omitted.) “Where the parties have chosen to memorialize the offered plea bargain on the record, subsequent claims of ineffective assistance of counsel in the defendant’s decision to reject the offer are likely to fail unless the record establishes that the information provided the defendant, as memorialized, was incomplete or inaccurate. [Citation.]” (Id. at p. 938, fn. 7.)
“In determining whether a defendant, with effective assistance, would have accepted the 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 -- after trial, conviction, and sentence -- that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (In re Alvernaz, supra, 2 Cal.4th at p. 938.)
In examining the facts, we look at the totality of circumstances, including if there was objective evidence in the record to corroborate a defendant’s version of the events and the defendant’s stance at trial. (See, In re Alvernaz, supra, 2 Cal.4th at pp. 939-940.) “For example, a defendant’s trial protestations, under oath, of complete innocence may detract from the credibility of a hindsight claim that a rejected plea bargain would have been accepted had a single variable (sentencing advice) been different.” (Id. at p. 940, fn. omitted.)
“In addition to proving that he or she would have accepted the plea bargain, a defendant also must establish the probability that it would have been approved by the trial court. Such a requirement is indispensable to a showing of prejudice because ‘ “[j]udicial approval is an essential condition precedent to any plea bargain” ’ negotiated by the prosecution and the defense [citation], and a plea bargain is ineffective unless and until it is approved by the court. [Citations.]” (In re Alvernaz, supra, 2 Cal.4th at pp. 940 -941.)
Here, appellant brought forth his claim of ineffective assistance of counsel through a motion for new trial. Such an allegation is not a statutory ground for making a new trial motion under Penal Code section 1181. Rather, “motions alleging ineffective assistance are permitted pursuant to ‘the constitutional duty of trial courts to ensure that defendants be accorded due process of law.’ [Citation.]” (People v. Callahan (2004) 124 Cal.App.4th 198, 209.)
With regard to the burden of review, “[i]nnumerable cases, both civil and criminal, have said that the trial court has broad discretion in ruling on a new trial motion, and that the ruling will be disturbed only for clear abuse of that discretion. [Citations.] But refinements to this general rule have developed.” (People v. Ault (2004) 33 Cal.4th 1250, 1260.) Cases have distinguished between orders granting and orders denying a new trial. (Ibid.) We review the denial of a motion for a new trial de novo when claimed errors of constitutional magnitude, such as a claim of ineffective assistance of counsel, are at stake. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 & fn. 7.) Thus, as In re Alvernaz, supra, 2 Cal.4th 924, explained, “we undertake an independent review of the record [citation] to determine whether petitioner has established by a preponderance of substantial, credible evidence [citation] that his counsel’s performance was deficient and, if so, that petitioner suffered prejudice.” (Id. at pp. 944-945.) However, we defer to the trial court’s express or implied findings if supported by substantial evidence. (People v. Albarran, supra, at p. 224, fn. 7; see People v. Taylor (1984) 162 Cal.App.3d 720, 724.)
C. An independent review of the record reveals that the trial court did not err in denying appellant’s motion for new trial.
Appellant does not argue that attorney Cogliandro failed to communicate the plea offer, and given the record of the June 13, 2007 hearing, any such argument would be unavailing. Rather, appellant’s ineffective assistance of counsel argument is premised on the assertion that attorney Cogliandro convinced him to reject the plea offer. This argument is unpersuasive.
As noted above, appellant must show that attorney Cogliandro’s representation was deficient and also show that he was prejudiced from this deficiency. (In re Alvernaz, supra, 2 Cal.4th at pp. 936-937; Strickland v. Washington, supra, 466 U.S. at p. 687.)
With regard to the first prong of this test, appellant presents four arguments: (1) Attorney Cogliandro was physically incapacitated; (2) Attorney Cogliandro’s testimony was suspect because when he was first called to the stand, he could not recall what had happened; (3) Attorney Cogliandro’s testimony was undermined by his testimony and that of his mother who both testified that attorney Cogliandro had convinced appellant not to accept the plea; and (4) Attorney Cogliandro underestimated the strength of the case involving Cobbs.
These arguments are not convincing. Rather, an independent review of the evidence demonstrates appellant made the decision to reject the People’s offer of 25 years. While the record shows that before trial attorney Cogliandro was having some physical difficulties, the transcript of the trial refutes any suggestion that he was not capable of presenting appellant’s case or discussing the plea offer with appellant and appellant’s family. Appellant’s self-serving statements and those of his biased mother do not lead to the conclusion that he should have been believed rather than attorney Cogliandro. Rather, the jury had rejected appellant’s testimony at trial, showing he and his witnesses lacked credibility, supporting the trial court’s factual finding that appellant and his witnesses also lacked credibility at the hearing on the new trial motion. Further, we must defer to the trial court’s factual finding that attorney Cogliandro’s testimony was credible. These factual findings are supported by the record.
Appellant has asked us to take judicial notice of State Bar records reflecting that over the years attorney Cogliandro has admitted to taking a number of drugs for various maladies and he has been charged with misconduct for activities between 2002 and August 2007. We deny this request as the information contained in the documents is either repetitive of the facts that were presented to the trial court or irrelevant. We note that according to the State Bar website, currently attorney Cogliandro is suspended from the practice of law. (http://members.calbar.ca.gov/search/member_detail.aspx?x=73756 (3/19/2010))
As the court stated, there was nothing nefarious because attorney Cogliandro’s fee agreement provided he would earn more money if the case went to trial. Nor does the fee arrangement necessarily suggest attorney Cogliandro’s testimony was suspect. Attorney Cogliandro, Attorney Lunsford, and appellant’s mother all recalled that one of appellant’s parents was inclined to take the offer, although there was a dispute as to which parent expressed that desire. This supports the conclusion that the decision to reject the plea offer was made by appellant, after consultation with his family and with attorney Cogliandro.
The evidence also showed that appellant was fully aware of the evidence to be presented against him. Attorney Cogliandro reviewed with him the police reports and the facts; appellant knew that the bullet found in his home matched the gun found in his bedroom; appellant would have understood that there were independent witnesses who placed him at the scene of both shootings; and appellant was present during the preliminary hearing at which Kenneth Cobbs, Anthony Garrido, and Alex Copeland testified. Also, even if Cobbs was a gang member, Cobbs identified appellant as the shooter a number of times, and two other witnesses identified appellant as riding a bicycle near the scene. Appellant’s claim that Hernandez (Joker) shot Copeland was suspect. Further, appellant had been fully apprised of the ramifications of going to trial by the prosecutor prior to trial. Thus, it is not credible for appellant to suggest he went to trial because he had not been fully informed.
Additionally, prior to the denial of the new trial motion, appellant told a probation officer that “he did not wish to accept any deals because he did not shoot anyone.” This was consistent with attorney Cogliandro’s testimony that appellant chose to go to trial and consistent with appellant’s repeated protestations of innocence.
Given these facts, it was not believable that attorney Cogliandro convinced appellant to go to trial. Rather, as impliedly found by the trial court, appellant understood the evidence that would be presented and chose to proceed to trial.
The trial court did not err in denying appellant’s new trial motion.
IV.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. CROSKEY, J.