Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR571666.
Lambden, J.
Defendant appeals from the trial court’s denial of his request to withdraw his plea of guilty of inflicting a corporal injury to the mother of his child (Pen. Code, § 273.5, subd. (a)). Defendant maintains that the lower court should have permitted him to withdraw his plea because his trial counsel provided ineffective assistance and because the plea was not supported by a sufficient factual basis. Defendant also challenges the lower court’s imposition of a booking fee, a probation supervision fee, and a probation report fee. Additionally, defendant filed a petition for habeas corpus and claims ineffective assistance of trial counsel. We are not persuaded by any of defendant’s arguments. Consequently, we affirm the judgment and deny defendant’s habeas petition.
All unspecified code sections refer to the Penal Code.
BACKGROUND
The Charges and Crime
Defendant is a Mexican citizen who, when arrested on November 2, 2009, had been in the United States for approximately 10 years, but was not a legal resident. He applied for legal residency in 2001 through his brother, who is a citizen of the United States, under an amnesty program; his application was still pending at the time of his arrest.
On November 4, 2009, a complaint charged defendant with one felony count of corporal injury to the mother of his child (§ 273.5, subd. (a)), and one misdemeanor count of child endangerment (§ 273a, subd. (b)). Defendant pleaded not guilty to each of the charges. A public defender was appointed to represent defendant and, subsequently, defendant’s family hired Marie Louise Case to represent him.
According to the probation report received on December 30, 2009, and filed on January 7, 2010, the City of Petaluma police investigated a report of a domestic dispute between defendant and the mother of his child (the victim) on November 2, 2009, at 8:40 p.m. The investigation revealed that defendant and the victim had lived together for approximately seven years, and had a four-year-old child together.
The probation report stated that defendant told the police that the victim was talking on her cell phone when he arrived home and that he believed she might have been cheating on him. The victim refused to answer his questions and he became angry and tried to take the phone from her. He reported that the victim slapped him in the face; he struck her back. She began to throw articles of clothing at him. He tried to stop her and she fell to the ground. Defendant admitted kicking the victim while she was on the ground; he was wearing steel- toed work boots.
The police interviewed the victim. She reported that after she refused to give defendant the phone, he took it from her. When she attempted to get it back, defendant grabbed her around the neck, with both hands, and began to strangle her and push her down onto the couch. The victim believed she might have lost consciousness for a short time; she awoke to find her four-year-old child patting her face and attempting to wake her. She went to the kitchen and continued to argue with defendant. Defendant threw her onto the kitchen floor and kicked her in the head. He then left the kitchen and went into their child’s bedroom and threatened to leave. When the victim entered the room, defendant pushed her into the dresser drawers, breaking them. The victim was on the floor and attempted to get up; defendant grabbed her by the hair and dragged her around the room. Defendant finally let go of the victim and left the apartment.
The probation report noted that the victim had bruising below her ears and on both sides of her neck. In addition to four marks on her neck, she had a visible lump on the center of her forehead that was approximately 1.5 inches in diameter. On her upper left arm were scratches, which appeared to have been caused by staples and small nails from the broken dresser.
Defendant’s Change of Plea and his Sentence
On December 4, 2009, defendant signed his Tahl waiver (In re Tahl (1969) 1 Cal.3d 122 (Tahl)). Defendant acknowledged his constitutional rights in his Tahl waiver, including “the right to present evidence in defense of the charges.” He also acknowledged in the waiver that he had enough time to speak with his attorney about his constitutional rights, any defenses he might have, and “the consequences of” this plea. The signed waiver also contained the following: “I understand that if I am not a citizen of the United States, conviction of the offense(s) may/will (circle one) have the consequences of deportation, exclusion from admission to the Untied States, or denial of naturalization pursuant to the laws of the United States. (Note: If convicted of an aggravated felony, defendant will be deported.)” Neither the word “may” nor “will” was circled. The form also did not define an “aggravated felony” or specify whether section 273.5 is an aggravated felony.
The document was actually entitled, “Defendant’s Waiver of Constitutional Rights Prior to Entry of Guilty or No Contest Plea.”
Defendant indicated that his plea and waiver of his Tahl rights were voluntary. His attorney, Case, also signed defendant’s plea. Directly above counsel’s signature was the following: “I am the attorney of record for the above named defendant. I have explained each of the above rights to the defendant and have discussed the facts, consequences and possible defenses to the charge(s) with him/her. I concur with his/her waiver of rights and entry of guilty/no contest plea(s). I further stipulate that there is a factual basis for the plea(s) and that this document may be received by the court as evidence of the defendant’s intelligent waiver of these rights and that it shall be filed by the clerk as a permanent record of that waiver. I have witnessed the reading, initialing and singing of this form by the defendant.”
At the hearing on December 4, 2009, the court asked defendant whether he had any questions about the rights he was giving up or the consequences of his plea. Defendant answered, “No.” Defendant pleaded guilty to willfully inflicting corporal injury resulting in a traumatic condition upon the mother of his child. After defendant stated that he was pleading guilty, the court asked Case whether she joined in the plea and waiver and whether she agreed there was a factual basis in the reports. Counsel responded, “Yes, your Honor.”
The court order signed by the judge on December 4, 2009, stated the following: “Having questioned the defendant concerning his/her plea(s) of Guilty/No contest and concerning any admissions of prior conviction(s), enhancements, and allegation(s), the court finds that: [¶] The defendant understands and voluntarily and intelligently waives the constitutional rights listed above; [¶] The defendant’s plea(s) and admission(s) are freely and voluntarily made; [¶] The defendant understands the nature of the charges and the consequences of the plea(s) and admission(s); and [¶] There is a factual basis for the plea(s). [¶] The court accepts the defendant’s plea(s) and admission(s) and finds the defendant guilty of the offense(s) pled to and the special allegation(s), enhancement(s) and prior conviction(s) admitted.”
On January 7, 2010, the court suspended sentence and placed defendant on probation, ordering him to serve a term of eight months in county jail. The court imposed a $630 probation report fee, and a $600 per year probation supervision fee. The court also stated that defendant was to pay booking fees. The court order filed the same day as the sentencing hearing listed the above fees and included, among other fees, a booking fee of $141.
Defendant’s Motion to Withdraw his Plea
Defendant retained new legal counsel, L. Stephen Turer, on January 22, 2010. Turer filed on behalf of defendant a motion to withdraw his plea pursuant to section 1018. Defendant asserted that Case rendered unreasonable legal representation. He maintained that Case “did not enact any investigation into potential defenses, interview any witnesses, nor engage in any background checks of the complaining witness and factors of mitigation.” He also asserted that his counsel misled him and failed to provide him with adequate information. Defendant stated that he wished for Turer to have the opportunity to renegotiate the guilty plea to a non-deportable offense or to move to withdraw the guilty plea and try the case. Defendant also filed a petition for writ of habeas corpus.
On March 29, 2010, the court consolidated defendant’s motion to vacate the plea and his petition for writ of habeas corpus.
The People filed their opposition to defendant’s motion to withdraw his plea on April 13, 2010. The People attached the declaration of Case. She stated that she provided defendant with copies of the incident report and medical records; she also averred that she met with defendant to discuss his case on several occasions. She stated that she engaged in settlement discussions and attempted to resolve the matter as a misdemeanor, but she was unsuccessful. She reported the following: “Prior to the date set for the preliminary examination, [Chief Deputy District Attorney Joan K. Risse] advised that if [defendant] did not accept the offer the complaint would be amended to allege an enhancement for great bodily injury or the ‘coma’ enhancement, which would have subjected [defendant] to an additional term in state prison of 3, 4 or 5 years. Such amendment would also have elevated the charge to a ‘strike.’ ” She confirmed that defendant understood that he would be pleading to a felony and she advised him that he would be deported as a consequence of the conviction. She noted that an immigration hold was already in place. She maintained that defendant was not pressured to accept the plea, but he elected to accept the offer.
The People also included a declaration of Chief Deputy District Attorney Risse. She stated that Case wanted to resolve the case with a misdemeanor because defendant did not have a prior criminal record. Risse responded that she would not agree to a misdemeanor “because of the egregious nature of the facts[.]” She advised Case that “it appeared the victim had suffered great bodily injury either in the form of unconsciousness or a head injury, and that we were waiting for the medical records to charge those enhancements, if appropriate.” She received the medical records and provided a copy of them to Case on December 1, 2009. The medical records, according to Risse, “contained information showing a loss of consciousness which would support the coma enhancement or the great bodily injury enhancement.”
Defendant filed a supplement to his motion to withdraw his plea and a reply to the People’s opposition. Attached was his declaration. Defendant stated that he is a citizen of Mexico and was in the process of obtaining his legal residency when he was arrested. He said that Case visited him in jail on November 5, 2009, but she would not listen to him and stressed the seriousness of the charges against him and the potential outcome if he were found guilty as charged. He declared that Case visited him a second time for about 25 minutes on December 3, 2009. He maintained that Case told him that his defenses were not worth investigating, that she believed he was guilty of the charges, and that he should agree to a plea bargain. He reported that she advised him that he faced 18 years in prison and a “strike” if he did not plead guilty. Case, according to defendant, told him that an investigation would be of no use and that she was not allowed by law to contact the victim. He said that she told him that if he agreed to the plea he would be convicted of only a misdemeanor. He claimed that he pleaded guilty because he believed the plea was to a misdemeanor and because Case did no investigation and visited him briefly only twice. Defendant declared, “After sentencing, when I realized that my guilty plea was, after all, to a felony and would preclude me from ever returning legally to the United States, my family and I sought legal advice.”
Defendant also submitted a declaration of Courtney McDermed, an attorney representing him in his immigration proceedings. She stated that an alien convicted of violating section 273.5 would most certainly be deported, was ineligible for a waiver of removal, and could not reenter the United States for at least 10 years. She stated that a different disposition would have avoided the immigration consequences. In light of the immigration consequences of the plea, she would have recommended that defendant take his criminal case to a jury trial because he would not have been worse off for immigration purposes. She concluded, after reviewing defendant’s case, that she would have advised him not to accept the plea bargain. She stated that she would have suggested that defendant plead guilty to committing a simple battery (§ 242) or to assault.
The Hearing on Defendant’s Plea Withdrawal Motion and Habeas Petition
On April 22, 2010, the court held a hearing on defendant’s plea withdrawal motion and habeas petition. After hearing argument from counsel, the court stated that it would review the matter and determine whether it should take testimony in the case. The court added, “Because it’s the lack of investigation prong that concerns me the most.”
On May 11 and May 12, 2010, the court held a hearing and witnesses testified. Case testified. She acknowledged that the jail log documented that her first visit with defendant on November 5, 2009, lasted 25 minutes. The log and her notes did not reflect another visit before December 3, but Case asserted that she had a “distinct” memory of sitting with defendant and reviewing the police reports. She said that this visit was not documented because either she did not sign the log or she signed the log to visit another client and then also saw defendant. She testified that her recollection was that she met with defendant on three separate occasions at the jail prior to defendant’s change of plea. On December 3, the day before defendant’s plea, she visited with defendant in jail to talk about the final offer from Risse. She asserted that she discussed with him the immigration consequences of his pleading guilty to a felony. She recalled having a minimum of six telephone conversations with defendant. She admitted that she was on vacation for seven of the 21 days between her first meeting with defendant and his pleading guilty.
Case reported that on December 4, 2009, defendant told Case that he wanted to accept the offer. She insisted that he knew he was pleading to a felony and that she advised him of the immigration consequences. Case testified that she reviewed the Tahl waiver with defendant.
When asked whether defendant’s family had told her that defendant’s wife had been violent with defendant and other people, Case responded, “No, never. [¶] They didn’t like her. They made that very clear to me. They were angry at her because she wouldn’t give over or give up the vehicles, the computer and the cash. That’s what they wanted.” She added: “I asked them if they had any information that was useful for him. They didn’t know the name of any witnesses. They never knew of any violence between the two of them. They knew that they argued verbally, but they weren’t aware of any history of violence on either any part [sic].” She stated that the “main thrust of their contact” with her was to help them get defendant’s personal property back. Case testified that she asked defendant whether the victim had ever been violent towards him in the past; he replied that she had not.
Case stated that she knew defendant was trying to obtain legal status and that he had a four-year-old child. She also knew that his pleading to the felony would prevent him from staying in the country. She admitted that she did not hire an investigator and did not have a preliminary hearing. She mentioned that she originally asked Risse for a misdemeanor domestic violence charge, and she knew a conviction for that would also result in defendant’s being deported. She insisted that she told defendant that he would be deported. She also admonished him that if he did not plead, the prosecutor was threatening to add the coma enhancement. Case testified that she believed the coma enhancement would have been a “legal stretch” but believed that the great bodily injury enhancement was a possibility. She said that Risse told her, “ ‘There’s no way this case will ever resolve as a misdemeanor[, ]’ ” and that either a coma enhancement or great bodily injury enhancement would be added if the plea was not accepted.
Case admitted that the evidence did not support a coma enhancement, but testified that she felt an “obligation to convey to my client what was represented to me by the district attorney’s office.” Case testified that she believed she told defendant that she did not think the People would be able to prove the coma enhancement. She said that she told defendant that there was no evidence of a brain injury.
Case concurred that the evidence did not seem to support a great bodily injury enhancement. She, however, expressed concern about the effect of defendant’s admission that he had kicked the victim in the head and his statement to her that the victim “was limp on the floor.” Case referred to the police report, which indicated that defendant admitted kicking the victim, but did not say that he kicked the victim in the head. Case conceded that she never examined the photographs the police had of the victim and did not listen to the recording of defendant’s interview with the police.
Three of defendant’s siblings also testified. Defendant’s brother, Jose Alcaraz, stated that he hired Case and talked to her twice. He reported that Case did not return his telephone calls or meet with him except to hand him a letter that defendant had signed. Another brother claimed that he told Case that he saw the victim slap and push defendant, but Case told him the information “wasn’t necessary.” He asserted that he went to Case’s office on several occasions but was unable to meet with her. Defendant’s sister testified that she saw the victim being violent towards defendant. She claimed that she never spoke to Case because, despite going to Case’s office, she was unable to meet with Case.
At the end of the hearing, the court took the matter under submission. While the matter was under submission, defendant moved to reopen to present additional evidence. On July 15, 2010, the court held a hearing and Lieutenant Michael Toby and Case testified. Toby reported that there were no phone calls from the jail using defendant’s pin number to Case’s phone number.
The Trial Court’s Ruling on Defendant’s Motion to Withdraw his Plea
The trial court filed its ruling denying defendant’s motion to withdraw his plea on July 30, 2010. The court found that Case’s legal representation of defendant met the standard of care required by a criminal defense attorney under the facts and circumstances of this case.
The trial court made the following findings:
“1. Ms. Case was very credible in her testimony;
“2. The defendant’s statements in each Declaration are incredible and, thus, unbelievable. Most of the defendant’s statements are self-serving and thus appear to be contrived after the fact;
“3. Sufficient investigation by Ms. Case was done prior to advising her client prior to entry of his guilty plea;
“4. Defendant confessed his crime to Ms. Case;
“5. Defendant clearly appeared to understand all proceedings as he never requested the use of an interpreter; [footnote omitted]
“6. The representation by Ms. Case was not below the standard of care required by a criminal defense attorney under the facts and circumstances of this case; [footnote omitted]
“7. A plea of guilty to a misdemeanor domestic violence charge would have subjected defendant to deportation;
“8. The plea of guilty as entered by defendant to the felony domestic violence charges was not the ‘worst case scenario’ as argued by defense counsel. Defendant could have been charged with an enhancement and certainly could have received a prison sentence after a plea without promise by the court or after a trial by a jury of his peers;
“9. The facts of this case do not appear to this court to be within the reasonable realm of permitting a misdemeanor resolution;
“10. Defendant was in control of his case and his destiny at the time he entered his guilty plea;
“11. Defendant knowingly, voluntarily and intelligently waived his constitutional rights immediately prior to entering his guilty plea;
“12. Defendant was properly advised by his attorney prior to the entry of his guilty plea;
“13. Defendant could have sought and obtained a continuance of his hearing regarding the entry of his guilty plea if he had the desire to do so;
“14. Defendant appears to have entered his plea out of a sense of guilt as expressed by his attorney;
“15. Ms. Case was not timely provided any useful, credible information by family members of the defendant;
“16. Ms. Case had sufficient contact with her client prior to his entry of his guilty plea to alleviate all reasonable concerns in this regard;
“17. The advice of Ms. Case to her client was sound based on all the testimony;
“18. The jail records as reviewed by this court revealed obvious inconsistencies and incompleteness thus revealing inaccuracies, leaving a great deal of doubt as to their usefulness and evidentiary value;
“19. There was a great deal of speculation about what may have been discovered as evidence in this case, but no admissible credible evidence as to this point was submitted into evidence at the hearing;
“20. Much of the argument of defense counsel was outside the scope of the evidence admitted in this case; and
“21. Preliminary hearings are routinely waived in a variety of cases for any one of a number of reasons.”
Defendant’s Filing of his Petition and Notice of Appeal
Defendant filed a petition for writ of habeas corpus in this court. He obtained a certificate of probable cause and filed a timely notice of appeal. We issued an order stating that we would consider the writ with the appeal.
DISCUSSION
I. The Trial Court’s Denial of Defendant’s Motion to Withdraw his Plea
A. Defendant’s Contentions and the Relevant Law
Defendant contends that the lower court should have granted his request to withdraw his plea because his trial counsel provided ineffective assistance of counsel. Specifically, he argues that Case failed to investigate his case adequately and failed to provide him with adequate advice regarding the immigration consequences of his plea.
A trial court shall allow a defendant to withdraw a plea if the defendant proves good cause for withdrawal of the guilty plea by clear and convincing evidence. (§ 1018; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) “To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress.” (Huricks, at p. 1208.)
“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.” (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.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) “[W]e defer to the trial court’s credibility determinations, and to its findings of physical and chronological fact, insofar as they are supported by substantial evidence.” (People v. Boyer (2006) 38 Cal.4th 412, 444; see also People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
Ineffective assistance of counsel is good cause to set aside a plea. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) “Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’ [Citations.]” (Padilla v. Kentucky (2010) 559 U.S. ____ [176 L.Ed.2d 284, 293].) Where the deportation consequence of a guilty plea is truly clear, defense counsel has a duty to correctly advise the defendant of these consequences. (Id. at p. ____ [176 L.Ed.2d at p. 296].)
A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. (Strickland v. Washington (1984) 466 U.S. 668, 689; In re Andrews (2002) 28 Cal.4th 1234, 1253.) A defendant claiming ineffective assistance of counsel in violation of his Sixth Amendment right to counsel must show not only that his or her counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms but also that it is reasonably probable that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington, supra, at pp. 668, 694; In re Jones (1996) 13 Cal.4th 552, 561.) Thus, in the present context, defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, he would not have pleaded guilty and would have insisted on proceeding to trial. (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
B. The Appellate Court’s Deference to the Trial Court’s Factual Findings
1. The Trial Court’s Consideration of an Attorney’s Reputation
Defendant argues that we should not defer to the factual findings of the lower court. He argues that the lower court improperly considered Case’s reputation. He maintains that her competence in other cases had no bearing on her performance in this particular case. (See In re Vargas (2000) 83 Cal.App.4th 1125, 1134 (Vargas).)
In the present case, the trial court stated in a footnote in its order denying defendant’s motion to withdraw his plea that Case “is known to this court as a very competent and cautious practitioner. The court also notes that Ms. Case’s practice has involved immigration issues for over 15 years during the course of her extensive representation of criminal defendants.”
When urging us to disregard the well-settled rule of giving deference to the factual findings of the lower court, defendant cites to Vargas, supra, 83 Cal.App.4th 1125. Vargas, however, is not helpful to defendant. The court in Vargas was not concerned with a trial court’s factual findings. Rather, the court explained that the defendant, who has the burden of proof to establish inadequate professional services, cannot rely solely on the fact “that a particular trial attorney has been accused of or has a reputation for rendering inadequate services, or has been found incompetent” as these facts “may have little relevancy in proving the attorney rendered ineffective assistance of counsel in another case.” (Id. at p. 1134.) Moreover, the appellate court did not suggest that such facts were irrelevant, but cautioned as follows: “Any evidence of prior neglect must have a bearing on the new accusations.” (Ibid.)
Even if we presume Vargas has some applicability to the present situation, the trial court acted properly here. The trial court did not simply rely on its prior experience with Case or its knowledge that she had been a very competent and cautious practitioner during her 15 years of representing criminal defendants. The court listened to her testimony and observed her and concluded that Case’s explanations and testimony were both reasonable and believable. In contrast, it found defendant’s self-serving declarations incredible. Indeed, defendant’s statements that Case told him that his defenses were not worth investigating, that she believed he was guilty of the charges, and that she told him he would be convicted of a misdemeanor, not a felony, support the lower court’s conclusion.
We conclude that the lower court’s findings and conclusions were within the purview of the trial court. Accordingly, we reject defendant’s claim that the lower court acted improperly.
2. The Trial Court’s Finding that Defendant Understood the Proceedings
Defendant also urges us to disregard the deferential standard of review simply because the lower court misstated that defendant never requested an interpreter. The court stated that defendant “clearly appeared to understand all proceedings as he never requested the use of an interpreter[.]” Defendant points out that at the beginning of the sentencing hearing Case did request an interpreter. He declares that one of the lower court’s “findings is demonstrably wrong[, ]” and then proceeds to imply that the lower court was not truthful when it stated that it reviewed all of the documents in the record. He adds that the fact that he requested an interpreter indicated that he did not understand any of his discussions with Case or the information on his plea form. He concludes that he had a constitutional right to an interpreter throughout his criminal proceedings.
The fact that the trial court overlooked one sentence in the reporter’s transcript where Case requested the assistance of an interpreter at defendant’s sentencing hearing does not indicate or suggest that the lower court did not thoroughly review the record. The record on appeal and in support of the habeas corpus petition consists of 445 pages of a clerk’s transcript, 200 pages of a reporter’s transcript, 120 pages of exhibits/evidence, and a disk containing, among other things, the photographs of the victim and the victim’s residence. Thus, it was not unreasonable for the lower court to miss this one sentence, especially since there was no suggestion anywhere else in the record that defendant needed or desired the assistance of an interpreter.
In any event, a thorough review of the foregoing documents establishes that defendant never claimed in the lower court that he did not understand the proceedings or his communications with Case. When asserting ineffective assistance of counsel in the superior court, defendant claimed that Case did not advise him of the immigration consequences of his plea and that she seldom met with him. It is axiomatic that he cannot raise a new factual argument for the first time on appeal.
Furthermore, defendant’s “new” argument contradicts his second declaration submitted in support of his motion to withdraw his plea. In his declaration, defendant stated that Case visited him in jail on November 5, 2009, but would not listen to him. He complained that she stressed the seriousness of the charges against him and the potential outcome if he were found guilty as charged. He declared that Case visited him a second time for about 25 minutes on December 3, 2009. He averred that Case told him that his defenses were not worth investigating, that she believed he was guilty of the charges, and that he should agree to a plea bargain. He reported that she advised him that he faced 18 years in prison and a “strike” if he did not plead guilty. Case, according to defendant, told him that an investigation would be of no use and that she was not allowed by law to contact the victim. He said that she told him that if he agreed to the plea, he would be convicted of only a misdemeanor. Thus, if defendant did not understand what Case was telling him, as he now avows, his statements in his declaration were false.
3. The Trial Court’s Other Findings
Defendant also claims that the lower court ignored the conflicts, discrepancies, and inconsistencies in the evidence. He points out that Case said that she met with defendant three times, but the jail logs did not support this claim. Additionally, Case claimed to talk to defendant six times on the telephone but no documentation supported this assertion. Furthermore, he maintains that his own declarations and his siblings’ testimony contradicted Case’s testimony.
We reject defendant’s invitation to us to reweigh the evidence. As already stressed, issues of credibility are within the province of the trier of fact. (Washington v. Farlice (1991) 1 Cal.App.4th 766, 771-772.) An appellate court has the power to disregard testimony found credible by the trier of fact only if it is incredible on its face or inherently improbable or physically impossible. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) We may not reject a witness’s testimony simply because there were conflicts and inconsistencies in the testimony. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1181.) Testimony is inherently improbable only when the falsity of the testimony is apparent without resort to inferences. (People v. Allen (1985) 165 Cal.App.3d 616, 623, overruled on other grounds in People v. Berry (1993) 17 Cal.App.4th 332, 338-339.)
Nothing in the evidence suggests that it was physically impossible for Case to have visited defendant three times or to have spoken to him on the telephone six times. Case testified that jail logs and records are frequently incorrect; this testimony was not contradicted. Furthermore, she explained that she may have logged in to visit a different client and then also visited with defendant. Essentially, defendant is asking this court to accept as credible the testimony of his family members and his own self-serving declarations and reject as inherently improbable the testimony of Case. We agree that Case’s testimony would have been stronger had it been corroborated with documentary evidence, but the lower court observed her and found her to be believable. There is nothing in this record that shows that her testimony was inherently improbable.
Defendant also challenges the court’s finding that Case conducted an adequate investigation. He contends that she should have investigated whether the victim was telling the truth and whether she had a motive to lie in order to be able to remain in the country. He criticizes Case’s failure to investigate whether the victim had a history of being violent. Since the prosecutor was threatening an enhancement, he claims that Case should have consulted someone with expertise in interpreting medical records to determine the extent of the victims’ injuries and whether it was plausible that she lost consciousness for any significant period of time. Furthermore, defendant complains that Case did not bother to look at the photographs of the victim’s injuries, did not listen to the tape of the 911 call, and did not listen to police interviews.
Additionally, defendant insists that Case should have been ready to cross-examine the victim and that her failure to do so rendered her incompetent to advise him about whether he should proceed with a preliminary hearing. He argues that her performance in plea negotiations was deficient because she did not consult with an immigration attorney. He also claims that she should have given him advice as to what to do rather than simply set forth his options.
Defendant thus disagrees with the trial court’s finding that Case provided him with competent representation.
C. No Prejudice
We need not consider the foregoing alleged deficiencies or the myriad of other deficiencies alleged by defendant regarding Case’s legal services on his behalf because defendant has completely failed to establish prejudice. Even if we were to presume that Case’s legal services to defendant were objectively unreasonable, defendant cannot prevail unless he can demonstrate that the investigations would have resulted in favorable information to the defense, which would have resulted in his deciding to reject the plea offer. Defendant must establish “prejudice as a ‘demonstrable reality, ’ not simply speculation as to the effect of the errors or omissions of counsel [Citation.]... [Defendant] must demonstrate that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover.” (People v. Williams (1988) 44 Cal.3d 883, 937.)
With regard to defendant’s criticisms that Case did not investigate the victim, look at the medical records, examine the photographs of the victim, or listen to the 911 call or the interviews with the police, defendant cannot establish prejudice. The medical records are not even in the record on appeal. The only relevant evidence defendant suggests could have been uncovered is testimony from his siblings and his neighbor that the victim had a history of violence. Case, however, denied that anyone told her that the victim had a history of violence. This assertion is supported by the fact that defendant never reported to the police or the probation officer that the victim had a history of being violent. Thus, there is little in this record to suggest that Case would have discovered any witness who would have provided credible testimony that the victim had a violent history. Moreover, it is indisputable that the victim suffered injuries and defendant did not suffer any. Accordingly, other than defendant’s claim that the victim slapped him first, there is absolutely no evidence that the victim physically assaulted him in the present case.
Defendant’s argument that Case should have been ready to cross-examine the victim also lacks merit. No preliminary hearing was held and defendant does not argue or present any evidence that he would have benefitted from having a preliminary argument or that a preliminary hearing with effective cross-examination would have resulted in his refusing the plea offer.
Defendant’s sole argument regarding prejudice is that his immigration attorney stated, after reviewing defendant’s case, that she would have advised him not to accept the plea bargain. She stated that she would have suggested that defendant plead guilty to a simple battery or to assault. He claims that, had Case advised him of the drastic consequences of his plea agreement, it is reasonably probable he would not have accepted the offer.
As already stressed, we defer to the trial court’s finding that defendant’s declarations regarding his understanding of the immigration consequences of his plea were self-serving. (People v. Boyer (2006) 38 Cal.4th 412, 444.) The trial court found that Case did advise him of the immigration consequences and we reject defendant’s challenge to this finding. Case testified that she told defendant the sentence range, that he would be deported after a conviction, and that the “coma” enhancement was a “stretch.”
Furthermore, the fact that an immigration attorney stated that she would have advised defendant not to accept the plea bargain and would have suggested he plead guilty to simple battery or assault does not establish prejudice. The record shows that the prosecution would not agree to a plea for a misdemeanor, which also would have resulted in deportation, and there is absolutely no evidence that the prosecution would have considered simple battery or assault. Indeed, Chief Deputy District Attorney Risse refused to offer a misdemeanor “because of the egregious nature of the facts[.]” Defense argued that the medical evidence did not support the coma enhancement, but according to Risse, the medical records, “contained information showing a loss of consciousness which would support the coma enhancement or the great bodily injury enhancement.” As already noted, defendant cannot establish that the evidence did not support any enhancement because the medical documents are not included in the record on appeal.
Defendant has failed to establish that Case’s alleged deficient performance resulted in his failing to receive any critical information that would have resulted in his rejecting the plea offer, and he cannot establish prejudice. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea based on his claim of ineffective assistance of trial counsel.
II. Factual Basis for the Plea
Defendant contends that he should be permitted to withdraw his plea because it was not supported by a sufficient factual basis. He argues that the trial court did not satisfy itself there was a factual basis for the plea, in violation of section 1192.5. Section 1192.5 provides in pertinent part that the trial court shall “cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.”
In the present case, the complaint simply stated that defendant violated section 273.5, subdivision (a) on November 2, 2009, “in that he did willfully and unlawfully inflict corporal injury resulting in a traumatic condition upon JANE DOE, who was the mother of defendant’s child.” At the change of the plea hearing, after defendant stated that he was pleading guilty, the court asked Case whether she joined in the pleas and waiver and whether she agreed there was a factual basis in the reports. Counsel responded, “Yes, your Honor.”
In People v. Willard (2007) 154 Cal.App.4th 1329, the court held that a general stipulation that there was a factual basis for the plea without any reference to a document containing factual allegations was insufficient. (Id. at pp. 1334-1335.) Here, the court referenced “reports” but it does not specify that it is referring to the police report or some other report. Thus, in the present case counsel did not stipulate “to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.” (People v. Holmes (2004) 32 Cal.4th 432, 442.)
Failure to make an adequate inquiry, however, is harmless error “where the contents of the record support a finding of a factual basis for the conditional plea.” (People v. Holmes, supra, 32 Cal.4th at p. 443.) Here, the probation report sets forth the requisite factual basis. (See People v. Coulter (2008) 163 Cal.App.4th 1117, 1122 [the court’s failure to find a factual basis at the initial entry of the negotiated plea is harmless error where a subsequent probation report supported the finding].) The probation report indicated that defendant told the police at the scene that he struck the victim after she first slapped him. He admitted kicking the victim while she was on the ground, and while wearing steel-toed work boots. The probation officer interviewed defendant while he was in custody; defendant told the probation officer that he “lost control.” Defendant said that the victim was telling him things he did not want to hear so he “grabbed her by the neck and threw her on the couch.” Defendant did tell the probation officer that he did not kick the victim. However, the probation officer obviously discounted this denial in light of defendant’s prior admission to the police that he kicked the victim. The probation officer concluded that defendant “admittedly kicked the victim with steel toe boots during the assault....”
“The underpinnings of the ‘factual basis’ aspect for a guilty plea are well known. The courts want to make sure that there is some basis, ‘in fact, ’ for the guilty plea.” (People v. Coulter, supra, 163 Cal.App.4th at p. 1122.) Here, defendant’s statements to the police and to the probation officer, as reflected in the probation report, plainly demonstrate some basis in fact for his plea, and any error by the court in failing to establish it at the time of the initial entry of the plea was harmless.
III. Imposition of Fees
A. The Probation Report Fee and Probation Supervision Fee
1. Forfeiture
At the sentencing hearing on January 7, 2010, the court imposed a $630 probation report fee, and a $600 per year probation supervision fee. Defendant did not object to these fees in the trial court, but on appeal he maintains that they were improperly imposed because the trial court did not determine that he was able to pay the fees as required by statute. He also contends that substantial evidence does not support the imposition of these fees.
The People argue that defendant forfeited any challenge to the fees of $630 and $600, because he did not object to these fees in the lower court. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1068-1976.) We held in Valtakis that “a defendant’s failure to object at sentencing to noncompliance with the probation fee procedures of... section 1203.1b waives the claim on appeal....” (Id. at p. 1068, fn. omitted.) Defendant responds that there can be no forfeiture because he is not challenging the procedure, but is asserting that substantial evidence did not support imposition of the fees. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397.)
Contrary to defendant’s assertion in his reply brief, he does mount a challenge to the imposition of the probation report and supervision fees based on procedural grounds in his opening brief. In the present case, like the situation in People v. Valtakis, supra, 105 Cal.App.4th 1066, defendant received notice of the fees and their amount in the presentencing report.
The presentence report included the following advisement pursuant to section 1203.1b: “You have been informed of your right to a hearing and counsel and to have the court determine your ability to pay and the payment amount of the Report Preparation Fee. Having waived that right it is ordered that although not a condition of probation, the defendant will pay a Report Preparation Fee of $630, in minimum monthly installments of $25, starting within 45 days of the granting of probation or release from custody or treatment....” The report added: “You have been informed of your right to a hearing and counsel and to have the court determine your ability to pay and the payment amount of the fee for probation supervision. Having waived that right it is ordered that although not a condition of probation, the defendant will pay a Probation Supervision Fee of $630 per 12 months of probation, in minimum monthly installments of $25, starting within 45 days of the granting of probation or release from custody or treatment....”
Defendant thus had a meaningful opportunity to object to imposition of the fees, and has forfeited any challenge to the imposition of the fees based on improper procedure.
2. The Sufficiency of the Evidence
We agree with defendant that he can challenge the fees based on insufficient evidence on appeal even though he did not object to their imposition in the trial court. In People v. Pacheco, supra, 187 Cal.App.4th 1392, the Sixth Appellate District permitted the defendant to appeal various statutory fees, including a probation supervision fee under section 1203.1b, despite his failure to object in the trial court that it did not determine his ability to pay. (Id. at p. 1397.) The appellate court concluded that a claim based on insufficient evidence to support the order or judgment is not subject to the forfeiture rules. (Ibid.)
We, however, disagree with defendant’s contention that the record contains insufficient evidence to support the probation fees imposed by the trial court. The probation report noted that defendant had been working for Pacific Door Products, Inc. since August 2002 and “will in all likelihood be able to resume employment when released from custody.” It stated that defendant earned approximately $2,000 per month prior to his incarceration. With regard to his expenditures, the probation officer stated: “None reported.”
Defendant argues that he is now scheduled to be deported and could lose his job, which could affect his future ability to pay. He contends that the report does not contain any information about what he could earn in another country. He also objects to the report on the basis that it contains no evidence regarding his assets.
Defendant cannot now, belatedly, contest the evidence in the record. The report states that defendant reported no expenses and that defendant can be expected to earn $2,000 a month. At sentencing, defendant did not dispute any of the facts contained in the probation report. Nor did he assert that the probation report was somehow incomplete. Defendant had notice of the charges and the probation report contained evidence to support the amounts of the fees imposed. Accordingly, we conclude that substantial evidence supported the court’s imposition of the probation report fee and probation supervision fee under section 1203.1b.
If defendant’s financial circumstances change as a result of his pending deportation, he can seek a modification of the trial court’s judgment pursuant to section 1203.1b, subdivision (f).
Section 1203.1b, subdivision (f), states: “At any time during the pendency of the judgment rendered according to the terms of this section, a defendant against whom a judgment has been rendered may petition the probation officer for a review of the defendant’s financial ability to pay or the rendering court to modify or vacate its previous judgment on the grounds of a change of circumstances with regard to the defendant’s ability to pay the judgment. The probation officer and the court shall advise the defendant of this right at the time of rendering of the terms of probation or the judgment.”
B. The Booking Fee of $141
At the sentencing hearing on January 7, 2010, the trial court stated that defendant was to pay booking fees. The court order filed on the same date as the sentencing hearing specifies a booking fee of $141. Defendant maintains that the booking fee of $141 is improper because the court did not provide a specific amount at the sentencing hearing. Since the oral pronouncement is not identical to the order, he urges us to remand for the trial court to correct the error. (See People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2.) Furthermore, he objects to the fee on the basis that the court did not specify the statutory authority for the booking fee. He also asserts that the lower court improperly failed to consider his ability to pay the booking fee.
The People argue that ability to pay is not a consideration when imposing a booking fee. Defendant disagrees and cites Government Code sections 29550, subdivision (d)(2) and 29550.2, subdivision (a).
Government Code section 29550, subdivision (d)(2) reads: “(d) When the court has been notified in a manner specified by the court that a criminal justice administration fee is due the agency:” “(2) The court shall, as a condition of probation, order the convicted person, based on his or her ability to pay, to reimburse the county for the criminal justice administration fee, including applicable overhead costs.” (Italics added.) Government Code section 29550.2, subdivision (a) provides as follows: “If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person....”
Government Code sections 29950, 29550.1, and 29550.2 govern fees for booking or processing arrestees into a county jail. Government Code sections 29550, subdivision (a)(1), and 29550.1 apply to arrests made by a city. Here, the presentence report indicates that the City of Petaluma police responded to the domestic disturbance call and interviewed defendant. Thus, it appears from this record that the City of Petaluma arrested defendant and Government Code sections 29550, subdivision (a)(1), and 29550.1 apply. Nothing in these statutes requires a determination of the defendant’s ability to pay. The Legislative Counsel’s Digest of a 1993 bill that amended Government Code section 29550.1 noted then-existing law authorized that a judgment of conviction could contain an order for the payment of the criminal justice administration fee. The express purpose of the amendment was to “require that the judgment of conviction contain an order for payment of the fee.” (Legis. Counsel’s Dig., Assem. Bill No. 2286 (1993-1994 Reg. Sess.) 5 Stats. 1993, Summary Dig., p. 364, italics added.) The express language of the statute and its legislative history make clear that the fee imposed under Government Code section 29550.1 is mandatory.
Government Code section 29550, subdivision (a)(1) states in relevant part: “[A] county may impose a fee upon a city... for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city, special district, school district, community college district, college, or university, where the arrested persons are brought to the county jail for booking or detention....”
Defendant incorrectly cites to Government Code sections 29550, subdivision (d)(2) and 29550.2, subdivision (a). Government Code section 29550.2 applies if certain agencies other than those listed in Government Code section 29550.1 were the arresting agencies. Defendant presents no evidence to indicate that an agency other than those listed in Government Code section 29550.1 arrested defendant. To the contrary, the record indicates that the City of Petaluma arrested defendant. Thus, the fee could have been imposed only under Government Code section 29550.1, which contains no requirement of a finding of ability to pay and makes the fee mandatory.
When a fine or fee is mandatory, the sentence is unauthorized and is subject to correction at any time. (See, e.g., People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) Thus, the trial court’s failure to pronounce orally the exact fee amount at the sentencing hearing is immaterial. The court signed the order imposing the $141 booking fee, and defendant has not demonstrated that this amount did not accurately reflect the booking fee.
HABEAS CORPUS PETITION
Defendant contends that he was denied effective assistance of counsel when Case failed to investigate his case adequately. He argues that he suffered prejudice because his new trial counsel uncovered evidence that his case was defensible.
As already discussed, to prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two-prong test set forth in Strickland v. Washington, supra, 466 U.S. 668. Defendant must first show that “ ‘counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland, supra, at p. 688.) “Second, defendant must show that the inadequacy was prejudicial, that is, ‘ “there is 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.” ’ (People v. Ledesma, supra, at pp. 217-218, quoting Strickland ..., supra, at p. 694....)” (People v. Diaz (1992) 3 Cal.4th 495, 557.)
Here, even if we presume that defendant’s evidence shows that Case’s representation was not objectively reasonable, his claim fails because he cannot show prejudice. Even with the additional evidence discovered by defendant’s new counsel, defendant cannot show that there is a reasonable probability that a jury would not have found him guilty of committing a corporal injury to the mother of his child (§ 273.5, subd. (a)).
Defendant’s additional evidence consists of photographs taken of the victim’s apartment and of the victim, and witnesses’ testimony that the victim had been violent in the past. The photographs, according to defendant, establish that there were some inconsistencies between the victim’s claims and the actual placement of the furniture in the room. Additionally, he asserts that, contrary to the victim’s statement, the photographs do not indicate that any furniture was destroyed. He admits that the photographs may show a small bump on the victim’s forehead, but claims the injury is inconsistent with being kicked in the head with a steel-toed boot. He adds that in the 911 call the victim only stated that her husband hit her; she did not claim to have been kicked.
With regard to defendant’s claim that he has evidence of the victim’s aggression, defendant hired a private investigator and the investigator talked to potential witnesses who said that they saw the victim yell at defendant; they claimed that they never saw defendant hit her. One of the witnesses stated that on an unknown date in 2009 he was told by the victim’s roommate that the victim attempted to slice her wrists. Another witness, defendant’s sister, claimed that the victim got into a physical fight with another female and the victim struck the other woman and dragged her by her hair.
The foregoing newly discovered evidence, considered with the other evidence in the record, does not create a reasonable probability that a jury would not have convicted defendant of violating section 273.5, subdivision (a). Section 273.5, subdivision (a) provides that a person is guilty of a felony if the person “willfully inflicts upon” the mother of his child “corporal injury resulting in a traumatic condition[.]”
This court has reviewed the photographs of the victim that were submitted as an exhibit. The photographs establish that the victim suffered numerous lacerations or scratches on her arm, had red marks on her body, and had a bump on her forehead. Unlike other statutes requiring the infliction of serious or great bodily injury, the “traumatic condition” that must be the result of a defendant’s infliction of corporal injury on a spouse can be only minor, as long as there is an abnormal change in the victim’s body (such as a wound, or some other external or internal injury). (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086 [bruise sufficient, pain alone is not]; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [instruction properly defines traumatic condition to include minor injuries].) The photographs submitted by defendant amply support a finding that the victim suffered an abnormal change on her body.
The three witnesses, including defendant’s sister, did not observe this particular incident and have no information about what happened. Defendant admitted to the police and the probation officer that he struck the victim. He told the police that he kicked her while wearing steel-toed work boots. Other than defendant’s claim that the victim slapped him, there is no evidence to indicate that the victim was physically violent towards him on this particular occasion. Defendant suffered no injury.
Accordingly, this evidence amply supported defendant’s conviction for violating section 273.5, subdivision (a), and defendant has failed to establish prejudice. We therefore deny defendant’s request for habeas corpus relief.
DISPOSITION
The judgment is affirmed and the petition for writ of habeas corpus is denied.
We concur: Kline, P.J.Richman, J.
Government Code section 29550.1 states in relevant part: “Any city... whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt. The court shall, as a condition of probation, order the convicted person to reimburse the city... for the criminal justice administration fee.” (Italics added.)