Opinion
C087619
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ALEC ZANE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18F0014)
Defendant Steven Alec Zane pled guilty to inflicting corporal injury upon a cohabitant. He appeals the trial court's order denying his motion to withdraw his guilty plea. He contends the trial court abused its discretion because it failed to recognize that defendant agreed to enter the plea based on ineffective assistance of counsel. Specifically, defendant alleges his trial counsel was deficient in refusing to hire a private investigator to investigate his case. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the limited nature of the claim on appeal, we need not recite the offense in detail. It suffices to say that in October 2017, defendant held his girlfriend against her will and assaulted her for approximately 16 hours, causing bruising to her legs, arms and face. Pursuant to a negotiated plea agreement, defendant entered a guilty plea to one count of inflicting corporal injury resulting in a traumatic condition upon a cohabitant. (Pen. Code, § 273.5, subd. (a).) In exchange, several remaining charges were dismissed and defendant agreed to be sentenced to either two to four years in state prison, or placed on probation for three years with up to 365 days in county jail. Defendant signed a plea form acknowledging his rights and that he had discussed each item on the form with his attorney.
Undesignated statutory references are to the Penal Code. --------
Subsequently, defendant filed a motion to withdraw his plea under section 1018, contending that he agreed to enter the plea due to alleged concerns he would not be adequately defended by his appointed counsel because his counsel declined to hire a private investigator to investigate his case and advised him he would likely receive probation if he entered the plea. He argued that his counsel declined to obtain reports from a private investigator retained by defendant's prior attorney, in which the victim purportedly claimed the charged incident was a misunderstanding. Defendant claimed his fellow inmates advised him that a public defender would not hire a private investigator or take his case to trial so he felt that his only option was to plead guilty and hope to receive probation.
The prosecutor filed opposition to the motion, contending that defense counsel had behaved as any reasonably diligent attorney would based on the information and evidence he received from the prosecution, namely, that after some initial reluctance, the victim decided to cooperate with the prosecution and reported additional incidents of domestic violence. Further, the prosecutor contended that defendant had an opportunity to address his purported concerns about his counsel with the court and request new counsel, pointing out that defendant stated in the declaration attached to his motion that he did not raise his concerns with the court because he believed he would have the same problems with another public defender.
Following a hearing, the trial court denied defendant's motion to withdraw his plea, reasoning that there was no indication defendant received ineffective assistance and that he in fact entered an intelligent voluntary plea. The court found there was some indication defendant decided to change his mind about the plea after the probation department recommended a state prison sentence of four years, which was not a valid reason to grant the motion. Finally, the court concluded defendant failed to show he was prejudiced.
The court sentenced defendant to state prison for the middle term of three years. Defendant filed a timely notice of appeal, and the trial court granted his request for a certificate of probable cause.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his motion to withdraw his plea based on ineffective assistance of counsel. Specifically, he asserts his counsel "refused and never performed an independent investigation into the charges in spite of [his] requests of appointed counsel to do so." Further, defendant complains that his counsel never met with him at the jail while he was in custody and, in recommending the plea agreement, advised him that he would likely receive probation. He argues that based on these allegations, he made a showing of good cause to withdraw his plea. We disagree.
Section 1018 provides that 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." A defendant seeking to withdraw his plea has the "burden to produce evidence of good cause by clear and convincing evidence." (People v. Wharton (1991) 53 Cal.3d 522, 585.) "When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. [Citation.]" (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.) "Guilty pleas 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.)
When a defendant challenges his guilty plea based on ineffective assistance of counsel, the two-part test articulated in Strickland v. Washington applies. (Hill v. Lockhart (1985) 474 U.S. 52, 58 [88 L.Ed.2d 203, 210].) That is, to establish ineffective assistance of counsel, a defendant must prove (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 representation subjected the defense to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland).) And more specifically, when a defendant seeks to withdraw a guilty plea on the ground that he suffered ineffective assistance of counsel, he "must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
Here, the evidence does not establish that defendant's trial counsel performed in a manner that falls below an objective standard of reasonableness. Defendant claims his counsel failed to investigate his case, particularly the credibility of the victim. His claim is based entirely on his own declaration. When "[t]he appellate record contains no explanation for defense counsel's" decision and "[c]ounsel was not asked to explain it, nor did he volunteer an explanation, nor did he make any remarks that might be construed, directly or indirectly, as an explanation[,] on direct appeal we must reject the claim of ineffective assistance of counsel, 'unless there simply could be no satisfactory explanation.' " (People v. Kipp (1998) 18 Cal.4th 349, 367.)
The record does not contain an explanation for counsel's apparent decision not to hire a private investigator or to seek defendant's prior attorney's investigative reports. However, there are plausible strategic reasons for defense counsel to decline to hire a private investigator to investigate a domestic violence victim who had already given conflicting statements about defendant's abuse that could be used to challenge her credibility at trial. Further, defense counsel had information from the prosecutor that there was a witness who claimed the victim had told her about defendant's prior abuse and established a "secret code" that the victim would send her if she needed help. Based on the discovered evidence, defense counsel may have reasonably concluded from his evaluation of the case that the plea offer, which included opportunities to argue for probation and to avoid a conviction for a strike offense, was favorable. Accordingly, defendant has failed to establish the first prong of his claim that he received ineffective assistance of counsel.
Having determined that defendant has failed to satisfy the first prong of the Strickland test, we need not address his arguments with respect to the second prong. (Strickland, supra, 466 U.S. at p. 697.) In sum, defendant has not shown good cause to withdraw the plea by clear and convincing evidence, and the trial court did not clearly abuse its discretion in denying his motion. (People v. Shaw, supra, 64 Cal.App.4th at pp. 495-496.) Accordingly, we affirm.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.