Opinion
E051117 Super.Ct.No. RIF082861
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. OSCAR LOPEZ ZAMORA, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
In 1998, defendant participated in a home invasion robbery at his cousin's house with several other men. Defendant was not arraigned until 2009. Eventually, defendant entered a guilty plea to seven charges, including willful, deliberate, and premeditated attempted murder; robbery in concert; torture; and false imprisonment. Defendant filed a motion to withdraw his guilty plea in the trial court on the ground that he had not knowingly and voluntarily entered into the plea. The trial court denied his motion to withdraw his plea and granted his request for a certificate of probable cause. Defendant now claims on appeal as follows:
1. Due process of law requires that he be allowed to withdraw his plea because he was on drugs at the time he entered the plea, which clouded his judgment, and he did not understand the terms of the agreement because his counsel spoke too quickly for the Spanish interpreter.
2. He was misadvised on his minimum parole eligibility, resulting in a violation of his due process rights and his rights to effective assistance of counsel, and the trial court abused its discretion by denying his motion to withdraw his plea on these grounds.
3. The trial court failed to establish a factual basis for his plea as required by Penal Code section 1192.5.
All further statutory references are to the Penal Code unless otherwise indicated.
I
PROCEDURAL BACKGROUND
Defendant was charged by the Riverside County District Attorney's Office with two counts of attempted willful, premeditated, and deliberate murder against Hector and Rocio Pelayo. (§§ 664, 187, subd. (a); counts 1 & 3.) It was further alleged as to these offenses that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). Defendant was charged in count 2 with torture against Hector Pelayo (§ 206), and the additional allegation that he used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) during the commission of the crime. In counts 4, 5, and 6, defendant was charged with robbery in concert against all three victims. (§§ 211, 213, subd. (a)(1)(A).) Finally, in count 7, he was charged with false imprisonment of Teresa. (§ 236.)
Defendant committed his crimes in 1998. He was charged in a felony complaint on September 28, 1998, but apparently was not immediately apprehended as he was not present in court until September 2008.
On November 30, 2009, defendant entered a plea of guilty to all of the charges and special allegations. On May 13, 2010, defendant brought a motion to withdraw his guilty plea on the grounds that he did not understand the plea, he had been under the influence of muscle relaxers at the time he took the plea deal, his attorney spoke too fast for the Spanish interpreter, and he did not understand the resulting sentence, as will be discussed in more detail, post. The People filed opposition. Defendant's motion to withdraw his guilty plea was denied by the trial court.
On June 4, 2010, defendant was sentenced on counts 1 and 3 to the indeterminate sentence of life with the possibility of parole after seven years. In addition, on both counts 1 and 3, defendant was sentenced to three years for the great bodily injury enhancement and one year for the use of a deadly weapon enhancement, for a total of eight years. On count 4, defendant was sentenced to the upper term of nine years. On counts 5 and 6, he received two years on each count. Counts 1, 3, 4, 5, and 6 were ordered to run consecutive to each other. The sentences on counts 2 and 7 were stayed pursuant to section 654. Defendant's total state prison sentence was the determinate term of 13 years, plus life with the possibility of parole with eligibility after two consecutive seven-year terms, plus eight years. He received 15 percent credits pursuant to section 2933, subdivision (c).
On June 17, 2010, defendant filed his notice of appeal and requested from the trial court a certificate of probable cause on the ground that his motion to withdraw his plea was denied. The trial court granted the certificate of probable cause.
II
FACTUAL BACKGROUND
Since defendant pleaded guilty in this case, we draw the facts from the preliminary hearing.
On August 15, 1998, Hector Pelayo lived on Weller Place in Moreno Valley with his wife Teresa and their daughter Rocio, who was 17 or 18 years old at the time. Sometime on that day, defendant (who was Hector's cousin) and three other men came to Hector's door. Defendant and the other men went in the house, and one of the men with defendant held a gun to Hector's head. Hector yelled to Teresa to run. Hector was ordered to kneel down on the ground. His hands and feet were bound with duct tape. Defendant stood in front of Hector as he was being restrained and told him he was "going to go to hell." Defendant put a white plastic bag over Hector's head. Hector could no longer see. The men were able to stop Teresa even though she attempted to run outside. Teresa was taken into the bedroom.
As Hector was on the ground, he felt "pricking" with an object on his back and legs. Hector was bleeding all over his body. Defendant asked Hector for money. Hector told defendant to take everything but to not hurt them. Some jewelry and money were taken from the house. Hector eventually pretended that he was dead so they would stop stabbing and kicking him. Hector was able to make a tear in the bag to get air. He had been choking.
Rocio returned home at this time. Rocio hugged Hector and told the men to leave him alone. Rocio then began crying and yelling. At some point, one of the men stabbed Rocio in the neck.
Defendant and the others finally left. Teresa was found in the bedroom with a bag over her head.
Hector had scars from the incident and had internal bleeding after the incident. He spent at least three days in the hospital. It was clear that defendant was giving the orders. No further evidence was presented, as defendant's counsel agreed to waive the remainder of the preliminary hearing.
III
MOTION TO WITHDRAW PLEA
Defendant first contends his motion to withdraw his plea should have been granted by the trial court on the ground that he did not knowingly or voluntarily enter into the plea in violation of his federal due process rights. He claims that he was under the influence of drugs at the time of his plea, defense counsel spoke too fast during the plea agreement, and the Spanish interpreter could not relay all the information on the plea to defendant.
A. Additional Factual Background
On the preprinted felony plea form, defendant was advised and initialed that he "had adequate time to discuss with [his] attorney (1) [his] constitutional rights, (2) the consequences of any guilty plea, and (3) any defense [he] may have to the charges against [him]." The plea was signed by the Spanish interpreter acknowledging that the form was translated for defendant. The form was not signed by the People.
At the time the plea was taken in court, defendant's counsel, Christopher Dombrowski, explained on the record that defendant was subject to seven years to life on each of the attempted murder counts and they were mandatorily consecutive. The prosecutor also explained that on the enhancements for the two attempted murder counts, a total of eight years could be imposed. The prosecutor then also explained that defendant would get nine years for one of the counts of robbery in concert, and then three years each for the remaining two counts of robbery. The resulting sentence would be 23 years, plus 14 years to life.
The prosecutor miscalculated the sentence on the remaining robbery-in-concert terms which will be discussed in more detail, post.
The prosecutor also noted that two significant crimes had not been filed against defendant. Those charges included a gun use charge for holding a gun to Hector's head. Further, an attempted murder charge on Teresa as she was found in the bedroom with a white bag over her head and it was taped shut. She was unconscious and purple from asphyxiation. The People noted that these could be charged in the future, and if charged, defendant would face a sentence of 33 years, plus 21 years to life. The prosecutor noted that the "33 years would get some sort of credit. I understand that the life sentences do not get that same credit . . . ."
Dombrowski stated that he had spoken with defendant and explained to him that there was a strong probability of him being found guilty of the charges based on the state of the evidence. Dombrowski set forth the evidence against defendant. Two of the three victims had bags put over their heads, secured with duct tape. Hector received at least 20 stab wounds. A knife was found in one of the rooms. Rocio would testify that she received a stab wound to the neck that justified an attempted murder charge. She also had seen defendant's truck near their house prior to this incident. Hector would testify a gun was put to his head, he was asked for money, and he was told he was going to go to hell. Further, Dombrowski had advised defendant that at any time prior to the case going to trial the People could amend the information to add charges of gun use and attempted murder of Teresa.
Dombrowski concluded: "And that, in effect, he has the ability to resolve this matter and receive a sentence that would be 10 years less determinate, and—actually 17 years—at least 17 years less determinate than what he would receive if [the prosecutor] goes ahead and amends her Information and he's found guilty of these crimes. And I appreciate [the prosecutor's] courtesy, and I appreciate the Court taking the time in allowing me to do this. Thank you." Defendant was then given the lunch break to think over the plea deal.
When the parties returned to court, the trial court stated on the record that defendant had agreed to plead guilty to all of the charges for a sentence of 23 years and then he would begin serving the 14-year-to-life indeterminate term, and defendant agreed this was his understanding. Defendant insisted that no one forced him to take the deal, and he did not need to speak further with his attorney. Defendant understood the Tahl form. Defendant then pleaded guilty to all of the charges. Dombrowski joined in the admissions and waivers. The People were asked by the court if there was "[a]nything [it] missed on behalf of the People?" and they responded no. The trial court concluded: "Knowingly and intelligently waived his rights, the plea is freely and accepted and ordered entered."
In re Tahl (1969) 1 Cal.3d 122.
Defendant filed a written motion to withdraw his plea through newly appointed counsel. Relevant to the claims raised on appeal, according to the motion and the accompanying declaration signed by defendant, defendant did not understand the information at the time that the plea was taken because the interpreter could not interpret Dombrowski quickly enough. Defendant stated that the interpreter asked Dombrowski to slow down, but he refused. Defendant did not understand the plea deal. Defendant had taken a muscle relaxer the night prior to court and was under its influence. Defendant also was told his sentence would be 37 years to life, but learned actually the maximum was 35 years to life. Defendant calculated the sentence as 13 years determinate, plus 22 years to life. Defendant would not have taken the plea deal if he had been told the additional eight years of indeterminate time was not eligible for custody credit. Defendant declared: "I did not intend to enter into this plea. I would not have entered into this plea if I understood, or if my attorney had correctly explained, my maximum exposure, the fact that I was receiving an indeterminate sentence, his error in calculating my sentence and that I am now facing eight additional years of indeterminate sentence, or the fact that I am not receiving good time credits on the entire sentence."
In the People's opposition, they argued that defendant's declaration should be disregarded unless they were given an opportunity to cross-examine him. Further, defendant had not shown good cause for withdrawing his plea. Dombrowski had clearly set forth the charges on the record. There was no indication on the record that defendant was under the influence of muscle relaxers.
At the hearing on the motion, defendant was subjected to cross-examination by the People. Defendant claimed he obtained the muscle relaxers from his cell mate. Defendant was not given or prescribed the drugs by jail personnel, and there was no record of the drugs. He had not told anyone at the time he entered into the plea about taking the muscle relaxers because no one had asked him. The drugs clouded his judgment.
Defendant testified that the interpreter told Dombrowski to slow down, but he did not comply. Defendant, when asked if he heard the trial court state multiple times he was facing a 14-year-to-life sentence, stated: "Yes, but I wasn't told life sentences, and Dombrowski didn't tell me that either. I didn't understand that."
Defendant claimed he was told by Dombrowski that if he did not sign the plea agreement, he would receive a life sentence. Defendant believed he would receive a determinate 37-year sentence with the plea deal and would receive 57 years if he did not take the plea. Defendant also understood that he was to serve 50 or 85 percent of his time, and he was unaware that he would receive no credits on the indeterminate sentence.
The People then called Dombrowski. Dombrowski spoke with defendant through an interpreter. Dombrowski claimed that when he showed defendant the photographs of the victims, he stated: "'It is not fair that these people suffered that way. I'm going to plead guilty.'" Dombrowski did not notice that defendant was in a "mental haze." Dombrowski stated, when asked if he spoke too quickly for the interpreter: "Absolutely not. If I do, by course and conduct . . . and after 24 years of practice and having to work with various certified Spanish language interpreters, if I am talking too quickly, I will purposely slow down past that point and work with them. You don't have to correct me usually more than once, if they didn't catch something." Dombrowski advised defendant that in all likelihood if he did not plead guilty, the People would file an additional charge involving Teresa. Defendant never expressed he did not understand the plea. Dombrowski believed that defendant decided to plead guilty because of the possible exposure and after he saw the victims' photographs. Defendant was completely lucid.
Dombrowski was aware that there was some mistake on the calculation of defendant's sentence, but understood that it meant less time. Dombrowski agreed that if defendant's indeterminate sentence was longer, he would receive less good time credit.
The trial court questioned how what defendant thought was the actual sentence was relevant to whether the plea was knowingly and voluntarily entered. The trial court did not believe it was relevant. Dombrowski testified that defendant was lying that on the day of the plea he told him during the lunch hour he did not want to go forward with the deal.
In making its ruling, the trial court first stated: "Well, the only person who says that he was confused is the defendant. His counsel didn't find him confused, didn't have any problem with him comprehending what was happening. You [prosecutor] apparently didn't, and I didn't either. Since I made the finding that it was a knowing and intelligent waiver, and he freely accepted pleas free and voluntary, and I accepted it and ordered it entered. So I didn't. The only person who has said anything about being confused by reason of any kind of drug is the defendant, who obviously has an interest in the outcome of this motion." The trial court then ruled: "I remember now that it was a—it was quite an involved plea, and it took virtually the whole day. And Mr. Dombrowski was quite conscientious in making sure that the defendant was aware of what was going to happen. I remember that. And we kept putting it off so that he could think about it, and then on the record, you went on extensively about the entire plea. It would be—under the circumstances, it just isn't a close question as to whether or not there [were] efforts made to make sure he understood what was happening. [¶] . . . The motion is denied. I don't think there was any question that much was being done to try to make sure that he was informed of what was happening. So the motion for a new trial is denied."
B. Analysis
A guilty plea is valid as long as the record affirmatively shows it is voluntary and intelligent under the totality of circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 361.) A guilty plea is voluntary and intelligent when (1) it is made with the advice of competent counsel; (2) the defendant was made aware of the nature of the charges against him; (3) the plea was not induced by harassment, improper threats of physical harm, coercion, or misrepresentations; and (4) there is nothing to show the defendant was incompetent or otherwise not in control of his mental faculties. (Brady v. United States (1970) 397 U.S. 742, 750-756 [25 L.Ed.2d 747, 90 S.Ct. 1463].)
Section 1018 provides, in pertinent 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." "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) "The general rule is that the burden of proof necessary to establish good cause in a motion to withdraw a guilty plea is by clear and convincing evidence. [Citations.]" (Id. at p. 1207.)
We review an order denying a motion to withdraw a guilty plea for an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) If substantial evidence supports the trial court's order denying a motion to withdraw a guilty plea, that decision must be upheld on appeal. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917-918.) We adopt the trial court's factual findings to the extent they are supported by substantial evidence. (Fairbank, at p. 1254.) Thus, a plea "resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citations.]" (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
Here, the trial court did not abuse its discretion by denying defendant's motion to withdraw his plea as there is ample evidence that defendant's plea was entered into knowingly and intelligently, unhindered by any drug use, and with adequate representation by counsel. Defendant signed the plea agreement, translated by a Spanish interpreter, and initialed that he was entering into the agreement with full understanding of the agreement. The sentence was laid out in the document and stated on its face that he would receive a life sentence. Defendant also admitted that he was aware of his constitutional rights. In open court, defendant agreed to all of the charges against him, and prior to entering his plea, the charges and sentence were avowed by both Dombrowski and the People. At no time during the taking of the plea did defendant express any confusion with the deal. Based on the record, defendant entered into the plea agreement with full understanding of its terms and conditions.
The trial court could reject defendant's claim that he was under the influence of muscle relaxers. The trial court was present for the taking of the plea and observed defendant's behavior. Both the trial court and the prosecutor who were present observed that defendant was having no problem comprehending what was happening. Defendant testified he received the muscle relaxers from his cell mate and not jail personnel. There was no record of the drugs being given to defendant. Dombrowski spent time with defendant on the day he entered the plea and he did not notice that defendant was in a "mental haze" and defendant never expressed that he did not understand the plea. Dombrowski testified that defendant was completely "lucid."
Defendant signed a written plea agreement. He then sat through a prolonged hearing where the charges against him were set out, the possible sentence, and the possibility of other charges being filed against him. Defendant then was given the lunch time to think over the deal. When he returned, he immediately entered into the plea agreement. At no time did defendant express he did not understand the plea or that he was having trouble focusing because he was in a mental haze.
The record simply does not establish that he was under the influence of muscle relaxers that clouded his judgment on the taking of the plea. The trial court reasonably concluded that defendant had not established he was under the influence and properly denied the motion to withdraw his plea on this ground.
Further, there is no clear and convincing evidence that defendant did not understand the plea because Dombrowski spoke too fast for the Spanish interpreter. The only evidence of such occurrence was defendant's self-serving declaration and testimony. Dombrowski testified that he did "[a]bsolutely not" speak too quickly for the Spanish interpreter. Dombrowski explained that in his 24 years of practice, anytime he was told by an interpreter that he was speaking too quickly, he immediately slowed down. The trial court observed the testimony of both defendant and Dombrowski and found Dombrowski more credible. We will not question such determination.
Defendant claims this testimony is proof that Dombrowski "had a longstanding habit of talking too fast" and that he did not always slow down when asked. We do not interpret Dombrowski's response as establishing these facts.
Defendant had not explained what parts of the plea deal were not appropriately translated to him. On the written plea agreement, all of the terms of the deal were stated and defendant signed it through the help of a Spanish interpreter. Moreover, defendant never presented the testimony of the Spanish interpreter to corroborate his claims. There simply was no credible evidence before the trial court to support that Dombrowski's statements to defendant and in court were not properly translated.
Hence, we reject that defendant is entitled to remand to withdraw his plea because it was not entered into knowingly or intelligently or that the trial court abused its discretion by denying his motion to withdraw the plea.
IV
MISADVISEMENT ON PAROLE ELIGIBILITY
Defendant's claim—although somewhat confusing—essentially is that he was misadvised by the trial court, the People, and his counsel throughout the proceeding that he would be given a 23-year determinate term, plus 14 years to life. However, his proper sentence, as reflected by the abstract of judgment, is actually 13 years on the robbery counts, plus life with the possibility of parole after two consecutive seven-year terms, plus eight years. As such, defendant would not receive work time credit in prison under section 2933.1, subdivision (b) for the eight years on the enhancements attached to the indeterminate term. As a result of the mistake, he claims his counsel rendered ineffective assistance by misadvising him on the amount of work time credits he would receive in state prison, i.e., his minimum parole eligibility. Also, the trial court and the People similarly misadvised him, resulting in a violation of his due process rights. As such, the trial court erred by failing to grant his motion to withdraw his plea on this ground.
Subdivision (a) of section 2933.1 limits the amount of work time credit a prisoner can receive in state prison if convicted of a violent felony, and subdivision (b) also provides that such credits are not eligible to reduce the minimum parole eligibility, i.e., they do not apply to indeterminate terms. (§ 2933.1.) Subdivision (c) allows for presentence custody credits of 15 percent.
"Under long and well-established principles, a trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea. [Citations.]" (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481.)
Initially, defendant claims he was misadvised he would receive three years on each robbery when the plea was taken, not the resulting two years imposed at sentencing. Further, he was misadvised that his sentence would be "seven to life" when it should have been "life with [the] possibility of parole" with eligibility after two consecutive seven-year terms. Both of these errors were corrected at sentencing. We cannot envision how this could have impacted defendant's decision to enter into the plea agreement, and defendant provides no argument as to how it impacted his decision. Defendant received a lower sentence than he agreed to, and we cannot find that he would have not entered a plea of guilty had the trial court and counsel given a proper advisement.
Defendant next claims he was misadvised that his determinate sentence would be 23 years and the indeterminate term would be 14 years to life, instead of the 13-year determinate term and life with the possibility of parole with eligibility after two consecutive seven-year terms, plus eight years actually imposed. Since he is not entitled to work time credits under section 2933.1, subdivision (b) for the eight years, he was misadvised as to his minimum parole eligibility.
Defendant recognizes that the issue of work time credits is a collateral consequence of the plea and that the trial court need not advise a defendant of the credits in order for the plea to be deemed knowing and voluntary. Under state and federal law, a trial court does not need to advise a defendant regarding parole eligibility as a condition of a valid guilty plea. This includes no obligation to advise as to conduct and work credits to be earned while in prison. (People v. Barella (1999) 20 Cal.4th 261, 271-272.) However, he argues that if a defendant is misadvised as to the amount of credits by the prosecutor or the trial court, a defendant's due process rights are violated.
Defendant fails to set forth that the trial court and the People misadvised him on the work time credits he would receive in state prison under section 2933.1, subdivision (b). In fact, during the plea agreement, the People stated that he would not get the same credit on the life sentences. At no time did the trial court or the People discuss work time credits, and there was no misadvisement by either. As such, defendant was not entitled to withdraw his plea because he was not advised that his work time credits under section 2933.1, subdivision (b) would be limited by the trial court, or would not apply to the indeterminate term. (People v. Reed(1998) 62 Cal.App.4th 593, 600 ["'trial court's failure to inform the defendant of his parole eligibility is not a basis for invalidating a guilty plea on voluntariness grounds'".)
As for defendant's claim he received ineffective assistance of counsel due to counsel's misadvisement of the work time credits he would receive, i.e., his minimum parole eligibility, it simply is not shown on the record.
In order to establish ineffective assistance of counsel, 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 (1992) 2 Cal.4th 924, 936-937, citing, among others, Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 104 S.Ct. 2052].)
In his declaration filed with the motion to withdraw his plea, defendant claimed: "After my plea, I was made aware of the error in calculation and that I would be serving an additional eight years indeterminate, for which I would receive no 'good time' credit. I did not intend to sign for an indeterminate sentence; furthermore, my previous attorney advised me that I would receive 'good time' credit on the entire sentence, which I understood as 37 years determinate." He also stated at trial that he understood he would receive 50 to 85 percent credits on the entire sentence. At no time did defendant reference section 2933.1, subdivision (b) "work time" credits in prison. Dombrowski briefly stated at the hearing that if defendant's indeterminate term was longer, he would receive less "good time" credits. However, the trial court ended the inquiry by stating that credits were a collateral consequence not relevant to whether the plea was entered into voluntarily or knowingly.
It is not entirely clear from the record whether defendant was misadvised as to the presentence custody credits he would receive or the credit for time spent in prison under section 2933.1, subdivision (b). In People v. Reed, supra, 62 Cal.App.4th 593, the defendant claimed he received ineffective assistance of counsel because his counsel never advised him at the time of the taking of the plea as to the work time credit limitation in section 2933.1. It concluded: "Two predicates underlie our holding that defense counsel's failure to inform [the defendant] about the credit limitations in section 2933.1 was not ineffective assistance: (1) an attorney's failure to inform his or her client of the collateral consequences of the client's plea does not constitute incompetent representation under the Strickland criteria, and (2) a defendant's lack of information about parole eligibility does not undermine the voluntariness of his or her plea because under federal law such eligibility is a collateral consequence of the plea." (Reed, at p. 597.) The court noted, however, that "[w]e do not mean to say that a defense counsel's affirmative misrepresentation in response to a specific inquiry from the defendant about parole eligibility may never constitute ineffective assistance." (Id. at p. 601.)
Defendant relies on People v. Huynh (1991) 229 Cal.App.3d 1067. In Huynh, the court stated a blanket rule that "[w]e cannot imagine a case where a defendant should not be informed by defense counsel not only about the probabilities of conviction of the charged offenses, but also about the likely amount of incarceration, if any, following conviction. Integral to this advice would be an estimate of the probable minimum term before parole eligibility." (Id. at p. 1083.) Reed rejected that Huynh applied to its situation because Huynh involved the affirmative misadvisement of counsel. (People v. Reed, supra, 62 Cal.App.4th at p. 602.)
Here, as stated, it is impossible to determine from the record before us whether defendant was misadvised by his counsel of the limitation of credits under section 2933.1, subdivision (b). Certainly, defendant's counsel labored under the misconception that the indeterminate term was only 14 years, and that the determinate term included the eight years. However, it is unclear whether defendant and his counsel discussed the section 2933.1, subdivision (b) credits or the presentence custody credits that defendant would receive upon sentencing. Defendant makes no claim that his presentence custody credits were improperly calculated. It should also be noted that defendant's resulting sentence was actually two years less than the agreed-upon sentence and that the only difference is the calculation of work time credits. On this record, we cannot say conclusively that defendant was misadvised as to the section 2933.1, subdivision (b) prison credits, and therefore, the reasoning in Reed applies.
Defendant asks this court to remand to the trial court and order further testimony by Dombrowski regarding the credits issue. We decline this request. Defendant merely speculates as to what further testimony would be presented. Defendant has an available remedy of filing a petition for writ of habeas corpus to establish his ineffective assistance of counsel claim.
Defendant has failed to establish either that he received ineffective assistance of counsel or that his due process rights were violated by misadvisement as to his minimum parole eligibility based on his work time credits in prison. As such, the trial court did not abuse its discretion by denying his motion to withdraw his plea.
V
FACTUAL BASIS FOR THE PLEA
Defendant argues that the trial court failed to find a factual basis for his plea. "Section 1192.5 provides that for a conditional plea of guilty or no contest, the trial court is required to 'cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.' While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the 'constitutional standards of voluntariness and intelligence are met.' [Citation.]" (People v. Holmes (2004) 32 Cal.4th 432, 438, fn. omitted.)
Here, the People contend that no factual basis was required pursuant to section 1192.5 because defendant pleaded open to the court and this was not a plea bargain. Section 1192.5 contemplates a system in which an agreement is reached by the prosecutor and the defendant, and approved by the court. (People v. Orin (1975) 13 Cal.3d 937, 942-943, fn. 8.)
"The language of section 1192.5, read as a whole, unambiguously refers to conditional pleas. The first paragraph of section 1192.5 authorizes, for all but certain listed felonies, a plea of guilty, specifying the manner in which the court shall exercise its sentencing or other posttrial powers. The second paragraph provides that when 'the plea' is accepted by the prosecutor and approved by the court, the defendant cannot be sentenced to a punishment more severe than that specified by the plea. The third paragraph, which contains the factual-basis requirement, sets out procedures to be followed '[i]f the court approves of the plea . . . .' The court must advise the defendant its approval is not binding and may be withdrawn at the time of sentencing, in which case the defendant will be permitted to withdraw his or her plea. The court must also conduct an inquiry to 'satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.'" (People v. Hoffard(1995) 10 Cal.4th 1170, 1181.) Hence, unconditional pleas are not subject to section 1192.5. (People v. Hoffard, supra, at p. 1184.)
Here, defendant pleaded guilty to all of the charges in the information. The prosecutor did not sign the written plea agreement. At the time of the hearing on the motion to withdraw the plea, Dombrowski understood that defendant was pleading open to the court. The People did not join in the plea in open court. However, defendant was promised a specific sentence and further charges were not filed by the prosecutor against defendant since defendant pleaded guilty. Since we conclude the record provides an adequate factual basis for the plea, we assume that this was a plea bargain.
There was an adequate factual basis for the plea despite the trial court failing to make such finding. "A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citations.]" (People v. Holmes, supra, 32 Cal.4th at p. 443.) This record contains a sufficient factual basis for the guilty plea.
Here, the record demonstrates that an on-the-record inquiry as to the factual basis was made by the trial court prior to accepting defendant's guilty plea. When taking the plea, the trial court repeatedly referred to the charges, which included the names of the victims, the crimes charged, and the date of the offenses. Defendant admitted he committed these crimes. Moreover, the plea form included defendant's initials on the paragraph referring to the factual basis for the plea. Defendant initialed paragraph C(6), which states: "Factual Basis: I agree that I did the things that are stated in the charges that I am admitting."
Further, prior to the plea being taken, Dombrowski set forth the evidence against defendant, including that two of the victims had bags put over their heads secured with duct tape, Hector was stabbed 20 times, Rocio would testify that she received a stab wound to her neck, and Hector had a gun put to his head and was asked for money.
Additionally, the preliminary hearing testimony supports the plea. Hector had a gun held to his head and was told he was going to go to hell. Teresa tried to run, but was apprehended, held in the bedroom, and had a bag placed over her head. Hector described being "pricked" by an object and bleeding profusely. He also had a bag put over his head secured with duct tape, and he could not breathe. Rocio was stabbed in the neck. Jewelry and money were missing after defendant and the men left the house. While the trial court was required under section 1192.5 to inquire and ascertain a prima facie factual basis for the plea, it was not obligated to determine if defendant was guilty or not guilty of the offense. The record establishes a factual basis for the plea.
Since we conclude that an adequate factual basis for the plea could have been established and, if the trial court failed to comply with section 1192.5 such failure was harmless error, it follows that the trial court did not err in denying defendant's motion to withdraw the plea.
VI
DISPOSITION
The judgment is affirmed in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.