P. v. Lagomarsino

Filed 1/6/10 P. v. Lagomarsino CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Dan Ernest Lagomarsino appeals from a judgment upon a plea of guilty to 11 counts: five counts of unlawful sexual intercourse with a person under 16 years of age (Pen. Code,[1]  261.5, subd. (d), counts 1, 4, 5, 6, 7), one count of dissuading a witness ( 136.1, subd. (b)(1), count 2), three counts of lewd act on a child ( 288, subd. (c)(1), counts 3, 8, 9), one count of sexual penetration of a person under the age of 18 ( 289, subd. (h), count 10), and one count of making criminal threats ( 422, count 11). Defendant also admitted that counts 2 and 11 were violent or serious felonies ( 1170.12, subd. (a), (b) & (c), 1192.7, subd. (c)(37)). He contends that the trial court erred in denying his motion to set aside the information and that the court abused its discretion in denying his motion to withdraw his guilty plea. In a petition for writ of habeas corpus, which we consolidate with this appeal, defendant contends that he was denied the effective assistance of counsel because his trial counsel advised him to take the plea and agree to a minimum-maximum state prison term while assuring him that he would get less time. We affirm the judgment and deny the petition.

I. FACTUAL BACKGROUND

On September 7, 2007, the district attorney filed an information charging defendant with 26 counts including six counts of rape and five counts of forcible oral copulation, with a sentence exposure of 82 years 8 months in prison. The charges stemmed from numerous incidents in which defendant engaged in sexual offenses over the course of two and a half years with a minor, the first incident occurring when the minor was 14 years old. The evidence at the preliminary hearing included the recording of a pretext call in which defendant admitted engaging in sex with the victim and threatened to harm her boyfriend or her family if she told anyone about it.

On November 15, 2007, defendant moved to dismiss the information pursuant to section 995. He argued that there was no credible evidence of force adduced at the preliminary hearing, and that there was insufficient evidence introduced to establish the wrongful acts occurred because the victim did not describe the alleged acts with the required specificity. The People opposed the motion. The court denied the motion with directives for the filing of an amended information.

The parties thereafter negotiated a plea agreement and an amended information that eliminated the charges alleging forcible sexual assaults. On February 5, 2008, defendant waived his right to a jury trial and pled guilty to the 11 counts in the amended information in exchange for a minimum state prison sentence of 10 years or a maximum state prison exposure for all counts of 12 years in prison. The plea agreement also provided that [i]f at the time of sentencing the court believes that a probation sentence[] is appropriate, my pleas of guilty will be vacated and all charges and enhancements in the Information filed on 9/7/2007 will be reinstated. Defendant further agreed to waive his right to appeal the judgment except as to any sentencing errors. Defendant was represented by Nedra Ruiz during the preliminary hearing and plea proceedings.

On May 30, 2008, defendant appeared with Robert Casper and moved to relieve Ruiz as counsel. The court granted the motion. Casper informed the court that defendant was contemplating a motion to withdraw his guilty plea. The court continued the matter to allow for a hearing on the motion and sentencing.

Defendant thereafter filed a motion to withdraw his guilty plea on the ground that he was denied the effective assistance of counsel because his original counsel failed to adequately investigate the defense that the relationship between the victim and defendant was consensual and failed to provide mitigating evidence on his behalf. The People opposed the motion, noting that defense counsels efforts resulted in defendant obtaining a negotiated disposition that trimmed 70 years off of his maximum exposure, and that nothing defendant suggested concerning investigating defenses or presenting mitigating information would have negated any elements of the crimes to which defendant pled guilty. The court denied the motion, finding that Ruizs work in the case was not deficient, and that her work was significant in trying to combat the district attorneys evidence. The court noted that defendant faced a difficult decision: On the one hand, he may be looking at 82 years in state prison for something he claims he didnt do. On the other hand, hes looking at 10 to 12 years, a harsh sentence in his mind for something that he admits that he did do; and based on the examination of the case and a long, drawn-out evaluation process, he opted for the latter, that is, a 10‑to‑12-year sentence, harsh albeit in his mind for what he believes hes done, but a fair trade-off in light of the 82 years that he was looking at for what the DA is accusing him of having done. The court thereafter sentenced defendant to 10 years 4 months in state prison.

II. DISCUSSION

A. The Appeal

Defendant first contends that the trial court erred in denying his section 995 motion to dismiss the information. He argues that the court failed to address the issue that he was grossly overcharged and that the prosecution, therefore, had a tactical advantage during the plea bargaining process. The Attorney General asserts that defendant waived his right to appeal all issues with the exception of those concerning sentencing as part of the plea agreement and that defendants claim is not cognizable on appeal.

It is well settled that the issues cognizable on appeal from a guilty plea conviction are limited. ( 1237.5; People v. Hoffard (1995) 10 Cal.4th 1170, 1177.) A guilty plea admits every element of the crime and constitutes a conviction. [Citations.] For that reason, and without regard to section 1237.5, issues going to the determination of guilt or innocence are not cognizable on appeal; review is instead limited to issues going to the jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea. (Hoffard, at pp. 1177-1178.)

Here, the courts ruling on the section 995 motion is not only not cognizable on appeal under section 1237.5, but defendant specifically waived his right to appeal the judgment as part of his plea bargain. Accordingly, defendant has waived his right to contest the courts ruling on his section 995 motion. (People v. Kelly (1994) 22 Cal.App.4th 533, 536 [merits of suppression motion not cognizable on appeal where the defendant waived the right to appeal as part of plea bargain].)

Defendant also contends that the court abused its discretion in denying his motion to withdraw his guilty plea.[2] He argues that the court should have granted the motion upon learning defendant agreed to the negotiated disposition based upon his original defense counsels advice that he could receive a lesser term than the agreed minimum term under the agreement.

Section 1018 provides that the court may, upon a showing of good cause, permit a defendant to withdraw a guilty plea. The burden of proof necessary to establish good cause under section 1018 is clear and convincing evidence. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) To establish good cause, a defendant must show that he was operating under mistake, ignorance, or some other factor overcoming the exercise of his free judgment. (Id. at p. 1208.)  Withdrawal of a guilty plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion. [Citations.] (Ibid.)

Here, defendant argues that his statement to the court during the sentencing hearingthat his defense counsel informed him he could receive a lesser sentence than that afforded in the plea agreementshould have prompted the court to conduct a further inquiry to determine whether counsels assistance was ineffective. This self-serving statement, without more, however, was insufficient to demonstrate clear and convincing evidence of good cause to withdraw a guilty plea. Defendant was sentenced in accordance with the plea agreement. No error appears.

B. The Habeas Petition

Defendant contends that his original defense counsel was ineffective because she assured him that he could get less time than the agreed minimum and maximum terms specified in the plea agreement. He argues that he would not have entered the plea if his counsel had properly advised him of the constraints on the courts discretion following a plea agreement.

In order to prove a claim of inadequate representation, a defendant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. (People v. Pope (1979) 23 Cal.3d 412, 425.) Effective and competent representation requires counsels diligence and active participation in the full and effective preparation of [her] clients case. [Citation.] (Id. at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel only if the defendant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.) The defendant must also establish prejudice from counsels acts or omissions. Ordinarily prejudice must be affirmatively proved; the defendant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)

Here, defendant has submitted Ruizs declaration in support of his petition in which she avers that she told defendant that a sentence below ten years was possible given the courts great discretion at sentencing. She also declared that she would argue for a lesser term at sentencing and that she thought a five year sentence would be a victory. I told him he might go to jail for seven or eight years. (Id. at pp. 1-2.) Defendant has also submitted his declaration in which he states that Ruiz assured him the court would not sentence him to more than five years in state prison, and that he would not have agreed to enter the plea had he known Ruiz could not guarantee a maximum five-year state prison term.

As our Supreme Court has recognized,  [p]urported misrepresentations of defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon.  (People v. Ribero (1971) 4 Cal.3d 55, 61, superseded by rule of court on another ground as stated in In re Chavez (2003) 30 Cal.4th 643, 655‑656.) Here, defendant not only signed a plea agreement where the minimum and maximum state prison exposures were stated in bold type, the court admonished him concerning the sentence exposure during the plea proceeding: So, basically, the law requires, Mr. Lagomarsino, that for the most serious of the offenses, or the one that carries the longest term, the Court picks either the low term, the middle term, or the upper term; and then if the other charges call for consecutive sentences, then the Court picks one-third of the middle term on those others and adds that on. [] So after you do all that math, essentially youre looking at the maximum possibility being 12 years in state prison. Even if I picked the lower term, then the maximumthen the minimum possibility would be 10 years in the state prison, and it looks like according to the attorneys math, if I pick the middle term, then youd be looking at 11 years in the state prison. [] So essentially, youreas a result of this deal, youre going to prison for either 10, 11, or 12 years. Do you understand that? [] The Defendant: Yes, sir.

Hence, the record demonstrates that defendant was informed of the consequences of his plea, both orally and in writing. Moreover, during the sentencing hearing, he acknowledged that he agreed to the sentence in the plea agreement. While his remarks indicate that he wanted to proceed to trial rather than abide by the plea agreement, his remorse in having accepted the plea agreement does not demonstrate that his trial counsel was ineffective.[3] Even if Ruiz misinformed defendant of his potential sentence, given that he was clearly informed by the court and in writing that he faced a minimum sentence of 10 years, defendant cannot demonstrate he was prejudiced by his attorneys advice.

III. DISPOSITION

The judgment is affirmed. The petition for writ of habeas corpus is denied.

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RIVERA, J.

We concur:

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RUVOLO, P.J.

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REARDON, J.

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[1] All further statutory references are to the Penal Code.

[2] The court granted defendants request for a certificate of probable cause on this issue.

[3] At sentencing, defendant remarked, I realize that signing that deal was probably the worst thing that I ever could have done, because I felt that I wanted to be heard in court, and I wanted to have a jury. You know, if 10 or 12 years was more than I deserved, and thats what they felt I needed to do, then so be it; but I just dont feel that that was the case.