Filed 2/27/18 P. v. Lopez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN ANTHONY LOPEZ,

Defendant and Appellant.
D071682



(Super. Ct. Nos. SCD261503 &
SCD258148)

APPEAL from judgments of the Superior Court of San Diego County, Hon. Timothy R. Walsh, Judge. Affirmed.
Russell S. Babcock, 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, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
In case number SCD258148, defendant John Anthony Lopez pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378). In connection with the plea, defendant admitted the allegations that he was armed with a firearm in committing the crime (Pen. Code, § 12022, subd. (c)), that he had a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)), and that he had a prior conviction that qualified as a strike. (Pen. Code, § 667, subds. (b)-(i)).
While defendant was awaiting trial, he was arrested in case No. SCD261503. In this case, defendant also pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 2), and admitted the strike allegations (Pen. Code,
§ 667, subds. (b)-(i)).
On appeal, defendant argues the court abused its discretion in denying his motion to withdraw his guilty pleas because he alleges his pleas were not knowing and voluntary. In the alternative, he argues his pleas were the product of ineffective assistance of counsel. As we explain, we disagree with defendant's arguments and thus affirm his judgments of conviction.
OVERVIEW
On November 24, 2015, defendant pleaded guilty in both cases in exchange for a stipulated prison sentence of 10 years eight months. Defendant signed a knowing and intelligent plea waiver indicating he understood the consequences of his guilty pleas and the rights he was waiving.
On January 27, 2016, defendant was scheduled for sentencing on both cases. Before his sentencing, defendant asked the court to relieve defense counsel, Albert Arena, and to withdraw his pleas. The court in response reappointed the primary public defender to represent defendant and continued the sentencing date. On April 14, 2016, defense counsel filed a motion to withdraw defendant's guilty pleas.
On November 30, 2016, the court heard and later denied defendant's motion. Deputy district attorney Jorge Del Portillo, Arena, and defendant each testified at the hearing. According to Arena's and Del Portillo's testimony, on November 24, 2015, immediately before the final readiness conference, Del Portillo and Arena were discussing the terms of defendant's plea agreement. After Arena transmitted the latest terms to defendant, who was handcuffed to a court bench, defendant insisted on speaking privately with Del Portillo about a prior "free talk." Arena consented and stepped away to permit Del Portillo and defendant to meet. Arena stated he stepped away from the conversation as a policy matter, "so that [he] can avoid any potential conflict of interest if [defendant] was to name someone who [Arena] was representing." After a few minutes, Arena rejoined the discussion.
However, there was differing testimony as to what was discussed privately between defendant and Del Portillo. Del Portillo testified that he and defendant discussed only the prior "free talk" and whether the district attorney was able to utilize it in its investigations; and that he and defendant did not discuss defendant's cases, defendant's potential exposure under the criminal complaints, or the terms of the plea agreement then being offered. After Arena returned to the conversation, Del Portillo told Arena and defendant what he thought a judge would give defendant if the cases proceeded to trial and defendant was convicted. Following the conversation with defendant, Del Portillo agreed to lower the offer, stating, "[I]t was just seeing the desperation in Mr. Lopez's eyes and hearing him being earnest and wanting the lower offer to dispose of the cases."
Defendant testified differently. He testified that, before the final readiness conference, he was frustrated because Arena allegedly refused to take his cases to trial, and was allegedly doing a poor job in negotiating the terms of the plea agreement. Defendant further testified he told Arena he was not going to take the plea deal Del Portillo had offered. According to defendant, Arena and Del Portillo both approached him while he was handcuffed to the court bench and started talking to him. Defendant testified Del Portillo started discussing defendant's possible exposure time, and "then he said that Judge Walsh already had 20 years in." After hearing this statement, defendant became angry with Arena because "he actually did the work for Mr. Del Portillo," and asked Arena to leave.
After Arena stepped out of earshot, defendant stated Del Portillo continued talking to him about the terms of a plea agreement. During their discussion, defendant stated Del Portillo lowered his offer to 10 years eight months because Del Portillo had received a letter stating defendant had done a favorable act in preventing an inmate from committing suicide. However, Del Portillo denied any of this happened. Additionally, during their private discussion defendant requested a more favorable plea offer due to his willingness to participate in a "free talk."
On cross examination, defendant testified that during their private discussion, Del Portillo allegedly pressured him to plead guilty because Del Portillo told defendant he would receive a sentence of 20 years if convicted. However, when asked why he pleaded guilty, defendant testified at the hearing, "I didn't want to put my mom through it." Defendant further testified, "When Judge Walsh asked me . . . whether or not to plead guilty, it was very hard for me, because I knew I wasn't guilty of the charges." Nonetheless, defendant admitted to signing the plea agreement and stated he understood the terms of the plea bargain.
Defendant also argued the court should grant his motion to withdraw his guilty pleas because Arena had provided ineffective assistance when Arena allowed defendant to speak privately with Del Portillo and when he failed to investigate defendant's case or file any motions on defendant's behalf. However, Arena testified defendant insisted on speaking privately with Del Portillo about a "free talk." Arena consented and permitted Del Portillo and defendant to speak privately because Arena wanted to avoid any conflict of interest.
Arena further testified he could not recall taking any notes on defendant's cases, and did not have any notes in his file when those were requested by defendant's newly appointed counsel. Arena also testified he did not attempt to unseal the warrant that was for a location different from defendant's address because his practice was not to file motions to quash or traverse a search warrant except as a last resort. Based on Arena's experience, he noted that prosecutors tended to keep much of the information supporting a warrant confidential, and Arena wanted to keep open the lines of communication with the prosecutor. Arena testified his work on defendant's case consisted solely of discussions with Del Portillo in an effort to reach a plea agreement per defendant's instruction.
In denying defendant's motion, the court found that Del Portillo briefly spoke to defendant outside defense counsel's presence at defendant's request and with his counsel's permission; that during this conversation, Del Portillo did not pressure defendant to accept the plea agreement; and that Del Portillo did not tell defendant the judge would sentence him to 20 years if he did not accept the plea agreement.
The court also found Del Portillo privately discussed information defendant had previously provided in a "free talk," and that in defense counsel's presence, Del Portillo merely gave his opinion as to what sentence defendant could face if convicted after trial. Accordingly, the court found Del Portillo had not pressured defendant to accept the plea agreement.
As to defendant's alternate claim that he received ineffective assistance of counsel, the court found defendant failed to show either deficient performance by defense counsel or resulting prejudice.
Regarding the first prong, the court found Arena only stepped away briefly and did so at defendant's request, as noted. The court also found Arena did not act unreasonably in failing to unseal the search warrants because Arena's decision was tactical and was reasonable under the circumstances, as Arena sought to keep the plea bargain discussions with the prosecutor open.
Regarding the second prong, the court found that, even if Arena had acted incompetently, defendant failed to show he had suffered any prejudice due to any deficiencies in Arena's investigation and/or his failure to file any motions. The court noted that Arena's actions resulted in the prosecution lowering defendant's sentence to 10 years eight months, when defendant was initially facing more than 30 years if convicted of all counts, and after the prosecutor seemed unwilling to offer defendant anything less than 13 years four months.
DISCUSSION
A. Defendant's Guilty Pleas were Knowing and Voluntary
Under Penal Code section 1018, "[a] defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment." (People v. Ravaux (2006) 142 Cal.App.4th 914, 917 (Ravaux).) "To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress." (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416 (Breslin).)
"The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake." (Breslin, supra, 205 Cal.App.4th at p. 1416, citing In re Moser (1993) 6 Cal.4th 342, 352.) "The court may also take into account the defendant's credibility and his interest in the outcome of the proceedings." (Ravaux, supra, 142 Cal.App.4th at p. 918.) "Fear of receiving a longer sentence as motivation for a plea of guilty is not a valid ground for later withdrawal of that plea." (People v. Hunt (1985) 174 Cal.App.3d 95, 105.)
"The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court." (Breslin, supra, 205 Cal.App.4th at p. 1416, citing People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).) A trial court's denial of the motion will not be disturbed on appeal "unless the defendant can show a clear abuse of that discretion." (Fairbank, at p. 1254.) "Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (Ibid.)
Here, defendant failed to establish good cause justifying withdrawal of his guilty pleas. Defendant signed a knowing and intelligent plea waiver indicating he understood the consequences of his guilty pleas and the rights he was waiving. Contrary to defendant's assertions, after an extensive hearing that included the testimony of defendant, defense counsel Arena, and the prosecutor Del Portillo, the court found that defendant was not subjected to duress or coercion when he accepted the plea agreement.
Indeed, the record shows and the court found that at defendant's request, Arena gave Del Portillo permission to speak to defendant outside of Arena's presence. The court found that during this short conversation, Del Portillo did not discuss the underlying facts of the two cases with defendant, but instead they discussed information defendant previously had provided to the district attorney's office during a "free talk." We conclude the court's finding that no duress existed when defendant accepted the plea agreement is supported by substantial evidence in the record. (See Fairbank, supra, 16 Cal.4th at
p. 1254.)
Additionally, the court found that there was no coercion during defendant's conversation with Del Portillo. Specifically, the court found Del Portillo did not encourage defendant to accept the offer or tell him the trial judge would sentence him to 20 years if he did not, as defendant claimed. While Del Portillo shared what sentence he thought a judge would impose if defendant was convicted, we conclude the court properly found such statements did not rise to the level of coercion or undue pressure. (See Breslin, supra, 205 Cal.App.4th at p. 1416.)
Moreover, when asked on direct examination why he pleaded guilty, defendant did not then claim Del Portillo's coercive conduct caused him to plead guilty. Rather, defendant testified he pleaded guilty because his family had been through enough and he did not want to put his mother through "it" (i.e., a trial and the possibility of being sentenced to more time if found guilty).
In sum, we conclude the trial court's findings that Del Portillo did not coerce defendant into pleading guilty and that his pleas were knowing and voluntary are supported by substantial evidence. (See Fairbank, supra, 16 Cal.4th at p. 1254.)
B. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, defendant must prove (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) We review trial counsel's performance with deferential scrutiny, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney's decisions. (Maury, at p. 389; Strickland, at p. 689.) We accord
" 'great deference to counsel's tactical decisions.' " (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) Where the alleged error of counsel is the failure to file a suppression motion, the defendant must prove that the motion would have been meritorious. (Kimmelman v. Morrison (1986) 477 U.S. 365, 375.)
"It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Defendant must affirmatively prove prejudice. (Mickel, supra, 2 Cal.5th at
p. 198.) "[T]he record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (Maury, supra, 30 Cal.4th at p. 389.) It is not enough for defendant to show that errors had some conceivable effect on the outcome of the case. (People v. Ledesma (1987) 43 Cal.3d 171, 217 (Ledesma).) Defendant must show a reasonable probability of a more favorable result. (Id. at pp. 217–218; Strickland, supra, 466 U.S. at pp. 693–694.)
Here, defendant contends Arena was ineffective when he allowed defendant to speak privately with Del Portillo outside Arena's presence and when he failed to properly investigate defendant's case or file any motions on defendant's behalf.
As noted, the court found Arena's conduct was reasonable because the short conversation that took place between defendant and Del Portillo occurred with Arena's consent and at defendant's request. The court also found Arena's decision to allow defendant to speak with Del Portillo alone was tactical, as it would enhance the possibility of defendant obtaining a more favorable plea agreement, which ostensibly turned out to be the case. (See Mickel, supra, 2 Cal.5th at p. 198.) We conclude there is substantial evidence in the record to support this finding. (See Fairbank, supra, 16 Cal.4th at p. 1254.)
We also conclude there is substantial evidence in the record to support the court's finding that defense counsel was not deficient for failing to conduct investigations, file motions to quash, or traverse the sealed warrant. (See Fairbank, supra, 16 Cal.4th at
p. 1254.)
The court found that Arena, at defendant's request, aggressively pursued negotiations with the prosecutor based on defendant's desire to settle the two cases and reduce his prison sentence. The court also found that Arena did not act unreasonably in failing to unseal the search warrants because doing so might have undermined Arena's efforts to keep the plea bargain discussions open; and that, because Arena, at defendant's request, took the negotiation path, a "competent, experienced defense attorney is going to work that angle harder than the investigative angle," as the court noted. (See Mai, supra, 57 Cal.4th at p. 1009.)
In any event, even if defendant could establish that defense counsel fell below the standard of care, his ineffective assistance of counsel claim still fails because he cannot show any resulting prejudice. (See Mickel, supra, 2 Cal.5th at p. 198.) The court found that nothing before it showed any probability that a more favorable result would have been obtained if defense counsel had refused defendant's request and not allowed defendant and the prosecutor to have a short, private meeting, or if defense counsel had moved to unseal the search warrants or file any motions on defendant's behalf. (See Ledesma, supra, 43 Cal.3d at pp. 217–218.) In fact, the court stated that defendant's case "got better and better along the way," as Arena was able to reduce defendant's sentence to 10 years eight months when defendant was initially facing more than 30 years if convicted of all counts, and after the prosecutor seemed unwilling to offer defendant anything less than 13 years and four months. For these reasons, we reject defendant's contention he received ineffective assistance of counsel in connection with his motion to withdraw his guilty pleas.
DISPOSITION
The judgments of conviction are affirmed.

BENKE, Acting P. J.

WE CONCUR:




HUFFMAN, J.




AARON, J.