Opinion
B222866
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE ALEXANDER CARREON, Defendant and Appellant.
Nicolas J. Estrada, for Defendant and Appellant. Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Theresa A. Patterson and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA056230)
APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed.
Nicolas J. Estrada, for Defendant and Appellant.
Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Theresa A. Patterson and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Jesse Carreon was charged with three counts of attempted willful, deliberate and premeditated murder, one count of robbery and several firearms enhancements. Carreon agreed to plead no contest to two counts of attempted murder, and admit that he discharged a firearm in the commission of each offense, with a resulting disposition of 35 years and 8 months in prison. Prior to sentencing, the District Attorney submitted a memorandum stating that the prosecution had miscalculated the proper sentence under Carreon's plea deal and requested that the court enter a lesser sentence of 34 years.
At sentencing, Carreon sought permission to withdraw his guilty plea, asserting that the prosecution's miscalculation of his sentence nullified the plea agreement. The trial court denied the motion and sentenced Carreon to 34 years in prison.
On appeal, Carreon argues that: (1) the trial court erred in denying his motion to withdraw his guilty plea, and (2) his trial attorney provided ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Carreon's Guilty Plea
On April 8, 2009, the District Attorney of the County of Los Angeles filed an information charging Appellant Jesse Carreon with three counts of "attempted willful, deliberate and premeditated murder" (Penal Code, §§ 664 & 187, subd. (a)), and one count of second degree robbery. (§ 211.) In addition, the information alleged that in the commission of each offense Carreon had personally discharged a firearm within the meaning of section 12022.53, subdivision (c), and personally used a firearm within the meaning of sections 12022.53, subdivision (b), 1203.06 and 12022.5, subdivision (a). Carreon pled not guilty to all counts.
All further statutory citations are to the Penal Code unless indicated otherwise.
At a pre-trial hearing on July 23, 2009, the District Attorney announced that the parties had reached an agreement under which Carreon would plead guilty to two counts of attempted murder and admit that, in the commission of those offenses, he had personally discharged a firearm within the meaning of section 12022.53, subdivision (c). In explaining the length of the resulting sentence, the District Attorney stated:
The defendant will plead guilty or no contest to count 1, an amended count 1. It would be the nonwillful, deliberate, premeditated, so it will be basically second-degree attempted murder, and he would be sentenced to a mid-term of seven years on that.After confirming that the sentence for the proposed plea agreement would be 35 years, 8 months in prison, the court directed the district attorney to take Carreon's plea.
Then he would admit a 12022.53(c) allegation for an additional and consecutive 20 years.
Then he would plead guilty or no contest to count 2. Again, on that count he would receive one-third the mid-term of seven years for a total of two years, four months. And again, he would admit a 12022.53(c) allegation for an additional eight years and four months consecutive, for a total of 35 years, 8 months.
The District Attorney began the plea proceedings by summarizing the allegations in the Information and the terms of the plea agreement. The District Attorney explained to Carreon that although the alleged counts "carry with them multiple life sentences," under the parties' proposed disposition, the State had agreed "to give . . . a sentence of 35 years eight months." Carreon acknowledged that he understood the allegations in the Information and the terms of the proposed disposition.
The District Attorney then advised Carreon that by pleading guilty he would waive several rights, including the right to a trial by jury, the right to confront and cross-examine witnesses, the right to present an affirmative defense, the right against self-incrimination and the right to use the subpoena power of the court. In addition, the District Attorney informed Carreon that his plea would result in a "restitution fund fine" between $200 and $10,000 as well as "restitution for the victim." Carreon stated that he understood his rights and was prepared to waive them, and further acknowledged that he would be subject to restitution.
The District Attorney also explained various possible collateral consequences of Carreon's guilty plea. Specifically, the prosecutor explained that Carreon's guilty plea would: (1) constitute a violation of any current parole terms; (2) subject Carreon to deportation if he was not a citizen, and; (3) serve as a basis for enhancing any future sentences. Carreon acknowledged that he understood the potential consequences of his guilty plea.
Finally, the District Attorney informed Carreon that he would not be permitted to change his guilty plea after it was entered, and asked Carreon if he "had enough time to consider the consequences of [his] plea, to talk to [his] attorney, and have him answer any of the questions that [he might] have." Carreon replied "yes," and confirmed that he was acting "freely and voluntarily" because he believed it was in his "best interest."
Carreon then pled guilty to two counts of attempted murder and admitted that he had personally discharged a firearm in the commission of each offense.
B. Carreon's Motion to Withdraw Guilty Plea and Sentencing
On September 22, 2009, Carreon, who had obtained new defense counsel, filed a motion to withdraw his guilty plea. In a declaration accompanying the motion, Carreon asserted that his plea was not "based on a free and clear judgment due to the coercion imposed upon me by my previous attorney and lack of communication at the time of the plea." This coercion "was in the form of a threat that if I did not accept the plea, I would receive an extensive jail sentence. The lack of communication was the lack of any attorney client communication regarding the pros and cons of my case, any defense, or the probabilities of winning my case at trial."
At the hearing on Carreon's motion, defense counsel argued that the "prior attorney did not act like a good attorney and advise [Carreon] about the case, his possible defenses, whether or not he had a chance of winning. He always spoke about the deal." According to counsel, Carreon's former attorney had only seen the defendant "three times, and always in lockup, always with the same offer: the first, 35 years; the second time was 35; and the third time was 35 years or life." Counsel explained that Carreon "felt threatened because he heard 'life' when he came out here. He was threatened. He didn't know what was going on. It had not been explained prior to the sentencing hearing what the D.A. or court was going to tell him."
Carreon also spoke at the hearing and alleged that his prior attorney had told him "'take the deal or get life.' I was threatened and I felt scared I had no idea what was going on."
In response to these arguments, the trial court noted that, without the plea agreement, Carreon was "facing life on two separate counts." The court further noted that, under the District Attorney's calculations, Carreon's maximum sentence would be a determinate sentence of 40 years, in addition to "mandatory consecutive sentences of 46 years to life."
At the conclusion of the hearing, the court denied Carreon's motion:
This, I think, was a very fair plea and I don't see any evidence that he didn't understand his rights. . . . [¶] . . . [¶] I see this over and over, buyer's remorse, but I do not think there has been a showing that he didn't understand.The court scheduled sentencing for December 29, 2009.
C. Sentencing
The day before the sentencing hearing, the District Attorney filed a memorandum explaining that the prosecution had made an error in calculating the proper sentence under Carron's plea deal: "Pursuant to the negotiated plea agreement, the defendant was to be sentenced to state prison for 35 years and eight months. . . . However, this sentence was computed in error." In a footnote, the memo described the nature of the erroneous calculation:
Based on the agreement of the parties, the defendant was supposed to be sentenced to the midterm of seven years for the first attempted murder charge, but this would result in an aggregate state prison sentence of 36 years , which is four months longer in duration than what was agreed to by the defendant.
To remedy the error, the District Attorney requested that the court impose a lesser term of 34 years in prison:
To cure the defect in a light most favorable to the defendant, the People are now asking that the defendant be sentenced to state prison for the low-term
of five years as to the first attempted murder charge, plus an additional 20 years for the 12022.53(c) enhancement. With regard to the second attempted murder charge, the People request that the defendant be sentenced to one-third the midterm, or two years and four months, plus an additional six years and eight months, which is one-third the term specified for the 12022.53(c) enhancement.
Accordingly . . . the People are now requesting that the defendant be sentenced to state prison for the aggregate term of 34 years.
Carreon, however, argued that the District Attorney's admitted error in the "computation of the sentence" nullified the plea agreement because "the parties did not agree . . . . [¶] . . . there was no meeting of the minds. . . [¶] . . . [¶] The parties were not agreeing to the same terms; therefore, the plea agreement was defective ab initio from the very beginning and should be set aside. . . ."
The trial court rejected the argument, explaining, "if it had been that [the prosecution] was requiring more time, I would agree with you; but in this case, he's getting the benefit of a few months less time than was the original agreement; so it certainly inures to his favor; so the request to set aside the plea once again is denied." The trial court sentenced Carreon to 34 years in prison.
After sentencing, Carreon requested a certificate of probable cause, which the trial court granted (see § 1237.5), and filed a notice of appeal.
Section 1237.5 states, in relevant part:
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met:
(a) The defendant has filed with the trial court a written statement . . . showing reasonable . . . grounds going to the legality of the proceedings.
(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.
The section applies to an "appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea." (People v. Johnson (2009) 47 Cal.4th 668, 679.)
DISCUSSION
Carreon raises two arguments on appeal. First, he asserts that the trial court should have permitted him to withdraw his guilty plea. Second, he alleges that his original trial counsel provided ineffective assistance.
A. The Trial Court Did Not Err in Denying Carreon's Request to Withdraw his Plea
Carreon argues that the trial court should have permitted him to withdraw his guilty plea based on the District Attorney's admission that the prosecution had miscalculated the appropriate sentence that would result from the parties' plea agreement.
1. The trial court did not abuse its discretion under Penal Code section 1018
a. Standard of review
We review the trial court's denial of Carreon's motion to withdraw his guilty plea for abuse of discretion. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917 (Ravaux)["The grant or denial of . . . a withdrawal motion is 'within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.' [Citation.]"]) We find an abuse only if the "court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) "[T]he burden [i]s on the defendant, . . . to present clear and convincing evidence that the ends of justice would be subserved by permitting [a] change [of] plea to not guilty." (People v. Beck (1961) 188 Cal.App.2d 549, 553.)
b. Carreon has failed to establish that the trial court abused its discretion
Penal Code section 1018 provides that "the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." The term "good cause" means "mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence." (Ravaux, supra, 142 Cal.App.4th at p. 917.) Carreon contends that, in this case, the District Attorney's erroneous calculation, which led Carreon to believe that his sentence would be longer than the sentence that was actually imposed, was a "mistake" rendering his plea ineffective.
"[A] defendant who has pleaded guilty after receiving inadequate or erroneous advice . . . with regard to the potential consequences of a plea generally is entitled to obtain relief only by establishing that he or she was prejudiced by the erroneous advice, i.e., by establishing, in the present context, that but for the . . . erroneous advice . . . , the defendant would not have entered the guilty plea." (In re Moser (1993) 6 Cal.4th 342, 345; see also People v. Hellgren (1989) 208 Cal.App.3d 854, 858 (Hellgren)["Advisement of the sentencing range is a judicially declared rule of criminal procedure, not a constitutionally compelled rule, and error must be prejudicial in order to warrant reversal"].) Because the defendant must establish a prejudicial effect, "reversal is . . . [normally] required only if the court fails to inform the defendant of information that makes the plea bargain less attractive than it appeared to be without the omitted information." (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734.)
On the other hand, there is generally no prejudice when the omitted information would have made the plea bargain more attractive or favorable to the defendant. For example, in People v. Hellgren, supra, 208 Cal.App.3d 854, the defendant moved to withdraw her guilty plea because she was told that her sentence would be "up to 3 years in prison," but was not informed that the court could also sentence her to the "lesser prison options of 2 years or 16 months." (Id. at p. 858.) Although the appellate court acknowledged that the trial court erred in withholding such information, it ruled that the defendant had failed to establish prejudice: "[t]his is not a case where the advice, if given, might have made a guilty plea less attractive. . . . Rather, the advice - that there could be a prison term less than the three years which defendant was willing to accept - could only have made the plea seem more attractive. There was no prejudice." (Ibid.)
Similarly, in People v. Johnson (1977) 66 Cal.App.3d 197, the defendant sought to withdraw his guilty plea because, although he acknowledged that pleading guilty to first degree homicide might subject him to "life imprisonment," he was not told that he might be eligible for parole in seven years. The court rejected the argument:
He was willing to accept life imprisonment for a guilty plea. He now claims the court should have told him of a possible windfall: he might be considered for parole in seven years. [Citation]. How is he hurt by being helped? Were his penalty increased over what he had been told it would be at the time of his plea, we could understand his complaint. But for the court to have told him even more favorable terms than the life sentence provided for first degree murder, would not have stopped him from making the plea; it could only have increased his desire to plead guilty.(Id. at p. 200; see also People v. Cortez (1997) 55 Cal.App.4th 426, 431 ["on the face of the record appellant agreed to receive a four-year prison sentence under the plea bargain. The court's failure to advise him that he in fact might be released on parole earlier could only make the sentence more attractive, not less. Accordingly, appellant was not prejudiced by the failure to advise him about conduct credits"] [abrogated on other grounds in People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098].)
This case cannot be meaningfully distinguished from Hellgren or Johnson. Carreon was willing to accept 35 years and 8 months for his guilty plea, which relieved him of the possibility of receiving a significantly longer sentence if convicted at trial. (See Pen. Code, § 1192.5 ["Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant . . . cannot be sentenced on the plea to a punishment more severe than that specified in the plea"].) He now claims that he should be able to withdraw his guilty plea because he received a more lenient sentence than the one he had accepted. Hellgren and Johnson make clear that, under such circumstances, there is no prejudice.
Even if we were to accept the notion that imposition of a lesser sentence might constitute prejudicial error under some circumstances, Carreon has pointed to no evidence in the record "'demonstrat[ing] that it is reasonably probable he would not have entered his plea if he had been [properly advised].' [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1023 ["'showing of prejudice requires the appellant to demonstrate that it is reasonably probable he would not have entered his plea if he had been [properly advised].' [Citations.]"]) After conducting an independent review of the record, we have found no testimony, declaration or other form of evidence suggesting that Carreon's plea would have been different if the trial court had told him that his sentence would be 34 years, rather than 35 years and 8 months. Accordingly, he has failed to demonstrate prejudice.
Carreon argues that, in addition to violating section 1018, the trial court's denial of his motion to withdraw was a violation of the federal Due Process clause. However, like his section 1018 claim, Carreon can only prevail on his due process claim if he was prejudiced by the error. (See generally People v. Scheller (2006) 136 Cal.App.4th 1143, 1152 [applying Chapman harmless error standard where "error implicates due process"].) Because both parties concede that Carreon received a lesser sentence than the one he agreed to, any due process error would be harmless.
2. Carreon was not entitled to void the plea agreement under contract principles
Carreon also contends that, under standard principles of contract law, the plea agreement should be nullified because, at the time of its formation, both parties were mistaken as to the proper length of Carreon's sentence. (See generally People v. Shelton (2006) 37 Cal.4th 759, 767 ["A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.]"]) The Restatement (Second) of Contracts explains the concept of "mutual mistake":
Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party. . . .(Rest.2d Contracts, § 152; see also Wurlz v. Holloway (1996) 46 Cal.App.4th 1740, 1751 [citing Rest.2d Contracts, § 152].)
Even if we assume the District Attorney's miscalculation "had a material effect on the agreed exchange," Carreon's argument fails because he was not "adversely affected" by the mistake. As explained above, Carreon initially agreed to 35 years and 8 months in prison but, as a result of the District Attorney's error, he received a more lenient sentence of 34 years.
B. Carreon's Ineffective Assistance Claim is Not Appropriate for Direct Appeal
Carreon next argues that his original trial attorney rendered ineffective assistance of counsel by: (1) failing to make a counteroffer to the District Attorney's plea proposal, and (2) coercing Carreon to accept the plea deal by informing him that if he went to trial, he would get a life sentence.
'"In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] 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. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.' [Citations.]" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
The California Supreme Court has "'repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.' [Citations.]" (People v. Jones (2003) 30 Cal.4th 1084, 1105 (Jones).)Thus, in cases where "'"the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
In this case, the record does not contain any information that permits us to evaluate the conduct of Carreon's former counsel, Phach Ngo. There is no evidence indicating whether Ngo tried to make a "counteroffer" to the District Attorney's plea agreement. Nor is there any indication that Ngo was asked to explain whether he made a counteroffer and, if not, why he elected not to do so. Based on the record, we simply cannot know what happened in regards to Ngo's alleged failure to seek a counteroffer.
The record also contains no evidence indicating why Ngo allegedly advised Carreon that if he did not accept the plea deal, he would receive a life sentence. Based on the preliminary hearing, in which multiple witnesses testified that Carreon had shot two victims, Ngo may have concluded that there was little chance of success at trial, and, as a result, it would be in Carreon's best interest to accept the plea agreement. "That we can hypothesize a reasonable tactical basis for defense counsel's conduct does not, of course, prove that counsel did have a reasonable tactical basis for his action or inaction." (Jones, supra, 30 Cal.4th at p. 1122.) Given the limited record in this case, we cannot determine whether Ngo acted incompetently in advising his client in regards to the plea deal. Therefore, for purposes of appeal, we reject petitioner's ineffective assistance claim and conclude that it is more appropriately decided in a habeas proceeding.
DISPOSITION
The Judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
WOODS, J.