P. v. Garfield
Filed 1/23/14
P. v. Garfield CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID LUIS
GARFIELD,
Defendant and Appellant.
F066818
(Super. Ct. No. PCF254693)
Opinion
In Judgment]
It is ordered that the opinion filed herein on January 8, 2014, be
1. On page 2, in the first paragraph of the
references to “Garcia†within that paragraph are to be changed to “Garfield.â€
There is no change in judgment.
_______________________________
Cornell, Acting P.J.
>
Filed 1/8/14 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID LUIS
GARFIELD,
Defendant and Appellant.
F066818
(Super. Ct. No. PCF254693)
THE COURT
APPEAL
from a judgment of the Superior Court of Tulare County. Elisabeth Krant, Judge.
John
F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J.
Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
David Luis
Garfield was charged with several crimes in a 10-count indictment that included
several enhancements. He pled guilty to
four counts and one enhancement for an agreed-upon term of 14 years in
prison. Before sentencing, Garcia moved
to withdraw his plea, asserting newly discovered evidence provided good cause
for doing so within the meaning of Penal Code section 1018.
motion and sentenced Garcia to the agreed term.
Garcia argues the trial court abused its discretion in denying his
motion to withdraw his plea. We find no
abuse of discretion and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Garfield was
charged with two counts of robbery (§ 211), two counts of conspiracy to
commit a robbery (§§ 182, subd. (a)(1), 211), two counts of assault with a
firearm (§ 245, subd. (a)(2)), transportation of methamphetamine (Health
& Saf. Code, § 11379, subd. (a)), possession of methamphetamine for
the purposes of sale (id., § 11378),
evading a police officer (Veh. Code, § 2800.2, subd. (a)), and receiving
stolen property (Pen. Code, § 496, subd. (a)). One count of robbery, conspiracy, and assault
with a firearm arose out of an incident that occurred on July 5, 2011. The second count of robbery, conspiracy, and
assault with a firearm arouse out of an incident that occurred on July 7, 2011. The transportation, possession, evading, and
receiving stolen property charges arose out of the pursuit and arrest of
Garfield as he was trying to escape following the July 7, 2011, robbery. A large quantity of methamphetamine and money
from the second robbery was found in his possession when he was apprehended. The two robbery counts also charged Garfield
with personally and intentionally discharging a firearm within the meaning of
section 12022.53, subdivisions (b) and (c).
The transportation and possession counts also alleged the amount of
methamphetamine exceeded 28.5 grams within the meaning of section 1203.073,
subdivision (b)(2).
Prior to the
preliminary hearing, Garfield pled no contest to the two robbery counts, the transportation count, and the
evading a peace officer count for an agreed term of 14 years in prison. On the first robbery count (July 5, 2011,
incident), Garfield agreed to plead no contest pursuant to People v. West (1970) 3 Cal.3d 595
enhancements. On the second robbery
charge (July 7, 2011, incident) Garfield pled no contest to the robbery and
admitted the firearm use enhancement, and the People dismissed the firearm
discharge enhancement. The sentence on
the first robbery count was imposed concurrently with the sentence on the second
robbery count.
Since Garfield
entered a plea, we take the following facts from the probation report, which
apparently were obtained from the police reports. On July 7, 2011, two Hispanic males robbed a
convenience store. Both were armed and
one subject discharged his firearm to obtain the compliance of the victim. The perpetrators obtained cash, a bank
envelope, and the victim’s wallet.
A short while
later, officers attempted to stop a suspicious vehicle. The vehicle accelerated and led officers on a
high-speed chase, which eventually ended when the driver stopped the
vehicle. Garfield and his minor cousin
were the occupants of the vehicle.
Inside the vehicle officers found bags from the convenience store
containing cash and methamphetamine. Garfield
and his cousin matched the description of the perpetrators provided by the
victim, including the clothing worn by the perpetrators. Garfield admitted possessing the
methamphetamine for sale but denied committing the robbery. Garfield’s cousin, however, admitted he and
Garfield had committed the robbery.
Security video of the July 5, 2011, robbery suggested the same
perpetrators committed both robberies.
Prior to
sentencing, Garfield filed a motion to withdraw his plea. The trial court denied the motion and
sentenced Garfield to the agreed-upon term of 14 years. Garfield filed a notice of appeal, and the
trial court granted his motion for a certificate of probable cause to challenge
the order denying his motion to with draw his plea.
DISCUSSION
Section 1018
permits a defendant to move to withdraw his plea for good cause at any time
before judgment is entered. A no contest
plea is treated the same as a guilty plea for the purposes of section 1018. (People
v. Rivera (1987) 196 Cal.App.3d 924, 926-927.) To establish good cause, a defendant must
show by clear and convincing evidence that his plea was the result of mistake,
ignorance, or any other factor overcoming the exercise of free judgment. (People
v. Cruz (1974) 12 Cal.3d 562, 566.)
We review a trial court’s decision to deny a defendant’s motion to
withdraw his or her plea for an abuse of discretion. (People
v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Garfield argues
he entered his plea only because he was denied his constitutional right to
effective assistance of counsel. Counsel
was ineffective, according to Garfield, because he failed to conduct adequate
investigation and locate two witnesses who would provide exonerating testimony
on his behalf. “It is well settled
that where ineffective assistance of counsel results in the defendant’s
decision to plead guilty, the defendant has suffered a constitutional violation
giving rise to a claim for relief from the guilty plea. [Citations.]
In Hill [v. Lockhart (1985) 474 U.S. 52 (Hill)],
the United States Supreme Court applied the criteria for assessing ineffective
assistance of counsel, set forth in Strickland
v. Washington (1984) 466 U.S. 668, to a claim of incompetent advice as to
the decision whether to plead guilty.
The court held that in order successfully to challenge a guilty plea on
the ground of ineffective assistance of counsel, a defendant 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. [Citation.]†(Alvernaz,
supra, 2 Cal.4th at p. 934.)
Therefore, to
prevail, (1) Garfield must establish that counsel was ineffective, and (2) if
counsel had acted competently, there is a reasonable probability he would have
not pled guilty and would have insisted on going to trial.
We begin our
analysis with the first part of this test, which we find dispositive. When a defendant enters a guilty plea on the
advice of counsel, the voluntariness of the plea depends on whether counsel’s
advice “was within the range of competence demanded of attorneys in criminal
cases.†(McMann v. Richardson (1970) 397 U.S. 759, 771.) “[A] defendant who pleads guilty upon the
advice of counsel ‘may only attack the voluntary and intelligent character of
the guilty plea by showing that the advice he received from counsel was not
within the standards set forth in McMann.’ [Citation.]â€
(Hill, supra, 474 U.S. at pp.
56-57.) Counsel is ineffective, or not
competent, if his or her conduct falls below an objective standard of
reasonableness under prevailing professional norms. (People
v. Dennis (1998) 17 Cal.4th 468, 540-541.)
We indulge in a strong presumption that counsel’s actions fell within
the wide range of reasonable professional assistance. (Id.
at p. 541.) This presumption does not
shield counsel’s actions from meaningful scrutiny, nor will we automatically
validate challenged acts or omissions. (
Garfield is
correct that the failure to conduct adequate investigation can constitute
ineffective assistance of counsel, and, if proven, is proper grounds for
withdrawing a guilty plea. (
the declaration of his current attorney, Ken Brock, which was filed in support
of a motion to continue the sentencing hearing.
Brock explained he substituted into the case after Garfield entered his
plea. Prior defense counsel informed
Brock there were two potential witnesses, D.A. and R.G., but stated he was
unable to locate the potential witnesses.
Brock located D.P. through Garfield’s family. D.P. told Brock that Garfield was not a party
to either robbery, but he did not know anything about the charges related to the
methamphetamine. Brock was also
optimistic he would be able to contact the second witness.
Brock’s
declaration was executed on December 10, 2012.
The motion to withdraw Garfield’s plea was filed on January 30,
2013. Brock executed a second declaration
in support of the motion, but he did not present any additional information
about these two witnesses. We assume
Brock was unable to speak with the second witness or the second witness was not
helpful.
We see two
issues regarding the first part of the ineffective assistance of counsel
test. The first issue is whether prior
defense counsel was ineffective for failing to locate the witness D.P. Brock did not suggest so in his declaration,
and we are not able to conclude from this record that he was ineffective. While Brock was able to speak with D.P.,
there is no explanation about why prior defense counsel was unable to do
so. To establish prior defense counsel
was ineffective, Garfield needed to explain that D.P. was at all times
available and prior defense counsel simply failed to contact him. From this record, it is possible D.P. was
unavailable for any number of possible reasons, and it was impossible for prior
defense counsel to do so, despite his best efforts. There is no evidence to suggest the family
had unlimited access to D.P. at all times.
Accordingly, on this record, we cannot conclude that prior defense
counsel was ineffective.
The second issue
regarding the first part of the ineffective assistance of counsel test is that
Brock’s vague declaration does not provide clear and convincing evidence D.P.’s
testimony was truly exonerating. Brock
simply states that D.P. would testify Garfield was not a party to either
robbery. Brock failed to explain the
testimony D.P. would give to support this conclusion. Was D.P. the actual perpetrator, a witness,
or the recipient of second hand knowledge?
Was he or she with Garfield at some other location when the robberies were
committed, thus providing an alibi? The
minimal information provided by Brock created more questions than it
answered.
Moreover, the
absence of a declaration from D.P. renders this proposed testimony highly
suspicious. If D.P. was willing to
testify, he or she should have been willing to execute a declaration that would
explain his or her proposed testimony.
The absence of a declaration suggests the testimony was, perhaps,
fabricated, or D.P. was not willing to testify.
In contrast, the evidence marshaled by the prosecution strongly
suggested Garfield was the perpetrator. In any event, it is abundantly clear the trial
court did not abuse its discretion in concluding there was not clear and
convincing evidence (1) the new witness was material, or (2) prior defense
counsel was ineffective.
Contrasting the
facts in this case with United States v.
Garcia (9th Cir. 2005) 401 F.3d 1008 (Garcia)
supports our conclusion. Garcia was
arrested for manufacturing methamphetamine and a related gun charge. The charges resulted from a search warrant of
a home at which Garcia was located. The
search resulted in the discovery of equipment to manufacture methamphetamine
and other related items, including several firearms.
Before
sentencing, Garcia moved to withdraw his plea on the basis of a newly
discovered witness. This witness executed
a declaration that directly contradicted the statement of the owner of the
house, who also lived in the house. The
newly discovered witness related she had lived at the house until four days
before the search. The witness asserted
Garcia never lived at the house, but he would come over to the house on
occasion. The witness also noted that
the day after she moved out of the house, two men moved into the portion of the
house where the firearms were located.
The witness recognized two of the seized firearms as belonging to the
husband of the owner of the house. The
witness had never seen Garcia in possession of the weapons. (Garcia,
supra, 401 F.3d at p. 1010.)
The appellate
court noted the new witness directly contradicted statements made by the owner of
the house, and also distanced Garcia from the weapons found during the
search. The appellate court concluded
this evidence was “relevant evidence in Garcia’s favor that could have at least
plausibly motivated a reasonable person in Garcia’s position not to have pled
guilty had he know about the evidence prior to pleading.†(Garcia,
supra, 401 F.3d at pp. 1011-1012.)
The appellate court concluded the newly discovered evidence constituted
“‘a fair and just reason’†for requesting withdrawal of his plea, which is the
standard employed in federal courts. (
The declaration
in Garcia established the new
witness’s identity, the foundation for her statements, and gave specific
factual statements explaining why her testimony would benefit Garcia. Here, Garfield did not present a declaration,
did not identify the witness, and did not provide any foundation for the
supposedly exonerating testimony. These
differences doomed Garfield’s motion.
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J., Gomes, J. and Hoff, J.
†Judge of the Superior Court of Fresno County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn2" title="">* Before Cornell, Acting P.J., Gomes, J. and Hoff, J.
†Judge of the Superior Court of Fresno County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
