Filed 10/5/18 P. v. Alvarado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Shahla S. Sabet, Judge. Affirmed.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Agustin Alvarado, pled no contest to committing a lewd act upon a child under the age of 14 (count 10; Pen. Code, § 288a)[1] and the continuous sexual abuse of a child under the age of 14 (count 12; § 288.5). Pursuant to the plea agreement, the court sentenced defendant to an aggregate term of imprisonment of 20 years. On appeal, defendant contends the court erred in denying his motion to withdraw the plea based on defense counsel’s purported prejudicial ineffective assistance of counsel in telling defendant he would only serve 12 to 13 years of his sentence. We affirm.

I. PROCEDURAL HISTORY

The People charged defendant by first amended information with six counts of oral copulation or sexual penetration of a child 10 years of age or younger (counts 1-3, 7-9; § 288.7, subd. (b)), four counts of lewd acts upon a child under the age of 14 (counts 4-5, 10-11; § 288, subd. (a)), and one count of sexual intercourse or sodomy with a child 10 years of age or younger (count 6; § 288.7, subd. (a)). The People additionally alleged multiple victim enhancements as to counts 4, 5, 10, and 11. (§ 667.61, subds. (a), (b), (e).)

Pursuant to a plea agreement, defendant pled no contest to the count 10 offense of committing a lewd act upon a child under the age of 14 and an interlineated count 12 offense of continuous sexual abuse of a child under the age of 14. The parties agreed defendant would serve an aggregate, determinate term of 20 years of imprisonment, comprised of the midterm of eight years on count 10 and a consecutive, aggravated term of 12 years on count 12. While taking defendant’s plea, the court specifically inquired of defendant: “And while you’re in prison, you’re entitled to good-time credit. However, you have to serve 85 percent of the time[,] actual time. [¶] Do you understand that?” Defendant responded, “Yes.”

Prior to sentencing, defense counsel made an off the record, oral motion to withdraw the plea. As recounted by the court: “Defense counsel informed the Court that . . . the defendant . . . changed his plea and entered into a plea of [no contest]. The reason for him . . . accepting that plea was because . . . he was told by his attorney that even though the sentence is for 20 years, but calculating potential good-time credit, that he will receive, he will do somewhere between 12 and 13 years, and then he will be placed on parole.” “[T]he defense attorney believes, the defendant entered into that agreement because he was misinformed about 12 to 13 years actual that he has to do.” Defense counsel confirmed the accuracy of the court’s recitation of the situation. Defense counsel confirmed that if the court inquired of defendant, defendant would also confirm the accuracy of the court’s recitation: “I know from speaking to [defendant] that he wouldn’t have entered into that plea agreement had he known that he was going to have to spend more time than what my erroneous calculations told him he would.”

In explicating its ruling, the court noted: “I put on the record with irony that we still don’t know the exact number. And that would be pivotal in our future discussion. But they have concluded that the actual time that he will do on the 20-year sentence will be somewhere between 14 to 15 plus years. And therefore, the defense attorney believes that had [defendant] known that he had to do 14- to 15 plus—let’s say 14 to 16 years . . . he [would] not have entered into . . . [the] plea . . . .”

The court exposited People v. Reed (1998) 62 Cal.App.4th 593 (Reed), “which had to do actually squarely with the issue of whether or not advisement regarding good time credit that is . . . Section 2933 which is exactly what we have here, non-advisement of that, both by defense attorney and [t]he Court, whether that will give good cause for withdrawal of the plea. And the Court concluded neither one is required to advise because it’s a collateral issue. The actual consequence is 20 years. What the [California Department of Corrections and Rehabilitation] will do with that 20 years is up to [the California Department of Corrections and Rehabilitation] and the current law. And all we can do is basically warn them, but not guarantee anything.” The court cited People v. Barella (1999) 20 Cal.4th 261, noting that that court held that “credit limitations, once again, [were] held [to be] a collateral consequence and not a constitutional violation.” In distinguishing defense counsel’s reliance upon People v. Huynh (1991) 229 Cal.App.3d 1067 (Huynh), the court observed that it had, itself, informed defendant that he would be required to serve 85 percent of his sentence, regardless of any misadvisement by defense counsel.

The court reasoned: “The calculation of the number of days or years that [defendant] has left to do is a mathematical calculation that apparently not only you say you made a mistake, as I said, it’s ironic. You still can’t figure it out exactly how many days. That’s why we don’t tell the defendant you have [three] months, [two] days, [five] hours left; or you have 12 years, [five] months left. We say you have to serve 20 years at 85. And we leave it at that. Or we say [three] years at 50 percent. We don’t sit down and calculate because there is a risk. [¶] You sat down and tried to calculate for your client. But he understood and pled 20 years at 85 [percent]. So I see a big distinction again. I do not see this as a direct consequence. I still see it as a collateral consequence. There was an error in calculation.” The court denied the motion.

The court later sentenced defendant, pursuant to the plea agreement, to an aggregate term of 20 years as recounted above. The court awarded defendant a total of 809 days of credit, including 704 days of actual custody credits and 105 days of conduct credit.

Defendant appealed. The court granted defendant’s request for issuance of a certificate of probable cause.

II. DISCUSSION

Defendant contends the court erred in denying his motion to withdraw the plea based upon defense counsel’s purported prejudicial ineffective assistance of counsel in affirmatively advising defendant that he would serve 12 to 13 years of his 20-year sentence. We disagree.

“At any time before judgment, or within six months after an order granting probation if entry of judgment is suspended, a trial court may permit a defendant to withdraw a guilty plea for ‘good cause shown.’ [Citation.] ‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea’ under section 1018 [citation], and section 1018 states that its provisions ‘shall be liberally construed . . . to promote justice.’ A defendant seeking to withdraw a guilty plea on grounds of mistake or ignorance must present clear and convincing evidence in support of the claim. [Citation.] A trial court’s decision whether to permit a defendant to withdraw a guilty plea under section 1018 is reviewed for abuse of discretion. [Citation.] ‘[W]hen a trial court’s decision rests on an error of law, that decision is an abuse of discretion.’ (People v. Patterson (2017) 2 Cal.5th 885, 894.)

“Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires. [Citation.] To be valid, guilty pleas must be based upon a defendant’s full awareness of the relevant circumstances and the likely consequences of his action. [Citation.]” (People v. Hunt (1985) 174 Cal.App.3d 95, 104.) “In claiming ineffective assistance of counsel, defendant bears the burden, and proof must be a demonstrable reality and not speculation. [Citation.]” (Id. at p. 105 [a court does not abuse its discretion in denying a defendant’s motion where it is unlikely that a jury would believe the defendant’s proffered new defense].) “The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.]” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)

“We 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. In a complicated case, the complexity of the sentencing law may excuse a defense counsel’s inaccurate prediction. [Citation.]” (Huynh, supra, 229 Cal.App.3d at pp. 1083-1084 [affirming the defendant’s conviction, but ordering the California Department of Corrections and Rehabilitation (CDCR) to show cause why the defendant’s “petition for writ of habeas corpus should not be granted on the ground of misadvice by defense counsel concerning defendant’s minimum term before parole eligibility.”].)

“[A] defense lawyer’s ‘“failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance.”’ [Citations.]” (Reed, supra, 62 Cal.App.4th at p. 597.) “[T]here exists no federal requirement, constitutional or otherwise, that a defendant be admonished by the trial court about parole eligibility factors as a condition of a valid guilty plea. [Citations.] These authorities are significant for our purposes because they are founded upon the notion that ‘parole eligibility is a collateral rather than a direct consequence of a guilty plea.’ [Citations.]” (Id. at pp. 598-599, 602 [holding that to the extent Huynh “may be read to insinuate a holding at odds with ours under the facts of this case, we elect not to follow it.”].) “This conclusion is entirely compatible with the command . . . that a criminal defendant be ‘“‘fully aware of the direct consequences’”’ of a plea which will result in a conviction; by ‘using the word “‘direct’ [the United States Supreme Court] excluded collateral consequences”’ as a factor in the determination about the voluntary nature of a plea. [Citation.] Thus, a criminal defendant’s ‘actual knowledge of consequences which are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea.’” (Reed, supra, at p. 598.)

“[A] defendant’s parole eligibility date is not a direct consequence of which a defendant must be apprised before pleading guilty. [Citation.]” (People v. Barella, supra, 20 Cal.4th at p. 263.) “[W]e conclude that neither the federal or the state Constitution, nor California’s judicially declared rules of criminal procedure, require[] the trial court to advise defendant, prior to his guilty plea, that he would be ineligible for release from prison until he had served” a specified minimum portion of his sentence. (Ibid.) “[W]e conclude that a defendant is not entitled to withdraw or set aside a guilty plea on the ground that the trial court, in accepting the plea, failed to advise the defendant of a limit on good-time or work-time credits available to the defendant.” (Id. at p. 272.) “We 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. [Citation.]” (Reed, supra, 62 Cal.App.4th at p. 601.)

First, we hold that defendant failed his burden of proof in the court below of establishing, by clear and convincing evidence, both that defense counsel misadvised defendant about his minimum parole eligibility date and that defendant would not have entered the plea had he been properly advised. Defense counsel neither prepared a written motion to withdraw the plea nor did he make his motion to withdraw the plea on the record. Thus, here, all we have is the trial court’s recitation of defense counsel’s motion to withdraw the plea and defense counsel’s affirmance that the court’s recitation was accurate. Wholly lacking from defense counsel’s motion to withdraw the plea are declarations from either or both defense counsel and defendant declaring that defense counsel had misadvised defendant regarding his minimum parole eligibility date and that defendant would not have entered the plea had he not been misadvised. Moreover, defense counsel failed to call defendant to the stand at the hearing on the motion to establish the purported misadvisement and prejudice. Thus, incompetent, inadmissible evidence is all that supports defendant’s motion to withdraw the plea. (People v. Archer (2014) 230 Cal.App.4th 693, 706 [court’s denial of motion to withdraw plea affirmed where the defendant failed to indicate in his declaration “that he . . . would not have accepted the plea bargain had it not been for the claimed mistake.”]; CALCRIM No. 104 [nothing attorneys say is evidence]; People v. Barajas (1983) 145 Cal.App.3d 804, 809 [argument is not evidence].)

In the cases cited and exposited by the parties, unlike the instant case, the defendants therein provided the court with competent, admissible evidence. In Huynh, the case primarily relied upon by defendant, the defendant had filed a petition for writ of habeas corpus along with his appeal: “Defendant’s habeas petition allege[d] that trial counsel was unconstitutionally ineffective in misadvising him about how soon parole was available after a second-degree murder conviction . . . .” (Huynh, supra, 229 Cal.App.3d at p. 1071.) “Defendant’s habeas corpus petition allege[d] his trial counsel was unconstitutionally ineffective . . . in misadvising him about how soon he could expect parole if convicted of second degree murder with personal use of a firearm. He also suggests the court thus misadvised him.” (Id. at p. 1080.) “In support of his habeas corpus petition, defendant declared he was so advised and he would not have waived jury trial had he been correctly advised he would actually be in prison for at least 15 years, the low range for second degree murder.” (Ibid.) Thus, the defendant in Huynh, unlike defendant in this case, filed a petition for writ of habeas corpus containing competent, admissible evidence, a declaration, averring that defendant had been misadvised about his parole eligibility date and that he would not have entered the plea had he been properly advised.

In Reed, the defendant had filed a declaration in support of his motion to withdraw the plea asserting he would not have entered the plea if he knew he could only acquire 15 percent custody credits. (Reed, supra, 62 Cal.App.4th at p. 596.) In Barella, the defendant submitted a declaration with his motion to withdraw the plea reflecting he believed he would receive 50 percent credits and would not have entered the plea otherwise. The defendant additionally testified at the hearing on the motion to withdraw the plea that his attorney did not advise him he would be required to serve 80 percent time, he believed he would only have to serve 50 percent time, and he would not have entered the plea otherwise. (People v. Barella, supra, 20 Cal.4th at pp. 264-265.) The court advised that the “defendant’s claim of ineffective assistance of counsel should be resolved in a habeas corpus proceeding rather than on appeal.” (Id. at p. 272.)

Here, defendant failed to provide the court below with competent evidence, declarations, and/or testimony that he was misadvised of the minimum parole eligibility date and that had he been properly advised, he would not have entered the plea. Neither did defendant file a petition for writ of habeas corpus. Thus, defendant failed to meet his burden of proof below and failed to file the proper procedural vehicle for remedying any purported error. (People v. Asghedom (2015) 243 Cal.App.4th 718, 726 [“‘[T]he defendant bears the burden of establishing prejudice. [Citation.] To that end, the defendant must provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised.’”]; People v. Martinez (2013) 57 Cal.4th 555, 565 [same].)

Second, even assuming defendant met his burden of adducing competent, admissible evidence, the court acted within its discretion in denying the motion to withdraw the plea. As the court noted, regardless of what defense counsel advised defendant, the court itself advised defendant he would have to serve a minimum of 85 percent of the 20-year sentence. Defendant indicated he understood. Thus, any misadvisement by defense counsel was negated by the court’s proper advisement of defendant’s minimum parole eligibility.

Moreover, the trial court recognized the difficulty, if not impossibility, of providing defendant with a definitive answer regarding his minimum parole eligibility date: “I put on the record with irony that we still don’t know the exact number.” “What the [CDCR] will do with that 20 years is up to the [CDCR] and the current law. And all we can do is basically warn them, but not guarantee anything.” “You still can’t figure it out exactly how many days. That’s why we don’t tell the defendant you have [three] months, [two] days, [five] hours left; or you have 12 years, [five] months left. We say you have to serve 20 years at 85. And we leave it at that. Or we say [three] years at 50 percent. We don’t sit down and calculate because there is a risk.” At the time of sentencing, one could only do a rough mathematical calculation of defendant’s minimum parole eligibility: Defendant received 809 days of custody credit at sentencing; subtracting that amount from his 20-year sentence yields approximately 17 years nine months as defendant’s sentence. If defendant earned his 15 percent credits,[2] defendant would then be required to serve just over 15 years before becoming eligible for parole.[3]

However, even though the above calculation of defendant’s minimum parole eligibility is two to three years more than that given by defense counsel in his purported misadvice, many other factors come into play when the CDCR determines an inmate’s minimum parole eligibility date: “On November 8, 2016, the electorate passed Proposition 57, and it took effect the next day.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304.) “Proposition 57 . . . included provisions relating to prison inmates, prison credits, and eased access to parole consideration.” (People v. Cervantes (2017) 9 Cal.App.5th 569, 594, fn. 28, disapproved of on other grounds in People v. Superior Court (Lara), supra, at pp. 314-315.) “pon the passage of Proposition 57 in the November 2016 elections, the [CDCR] issued new regulations governing the ability of inmates to earn custody credit to advance their parole dates.” (People v. Contreras (2018) 4 Cal.5th 349, 374.) These regulations have been “codified at sections 3043, 3043.2, 3043.3, 3043.4, 3043.5, and 3043.6 of title 15 of the California Code of Regulations . . . .” (Ibid.)

[u]McKINSTER

Acting P. J.

We concur:

MILLER

J.

CODRINGTON

J.