Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC145268A
Marchiano, P.J.
Defendant Jaime Delgado Chavira was charged with: corporal injury of a cohabitant (Pen. Code, § 273.5, subd. (a); count 1); criminal threats (§ 422; count 2); stalking (§ 646.9, subd. (b)); three counts of criminal contempt for disobeying a court order (§ 166, subd. (c)(2)); and misdemeanor battery (§ 243, subd. (e)(1)). The information alleged with respect to count 1 that defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)) and that he was ineligible for probation (§ 1203, subd. (e)(3)). Defendant pleaded guilty to counts 1 and 2, admitted the section 12022.7 and 1203 enhancements, and the other charges were dismissed with a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver. He was sentenced to seven years eight months in prison, representing: three years for the count 1 offense; four years for the section 12022.7 enhancement; and eight months for the count 2 offense.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Under section 1203, subdivision (e)(3), defendants who willfully inflict great bodily injury in perpetrating their crimes are not eligible for probation “[e]xcept in unusual cases where the interests of justice would best be served” if probation were granted. (See also Cal. Rules of Court, rule 4.413 (rule 4.413) [criteria for deciding whether a case is “unusual”].)
In this appeal with a certificate of probable cause, defendant contends that the court erred in denying his motion to withdraw his guilty plea. We find no prejudicial error relative to the motion and affirm the judgment.
I. BACKGROUND
When defendant pleaded guilty, he executed a form stating among other things that he understood he could be sentenced to up to nine years eight months in prison as a result of the plea, and that the plea was not made in exchange for any promise of probation. He also executed a form for domestic violence cases, which among other things listed minimum conditions that would be imposed if probation were granted, and a “Blakely/Apprendi” waiver with respect to the imposition of aggravated terms and consecutive sentences.
The transcript of the May 4, 2006, plea hearing reads in relevant part:
“¶ . . . ¶
“The Court: And the Court understands that you plan to plead guilty today to a violation of Penal Code Section 273.5 (A), a felony, on or about December 20th, 2005, to December 24, 2005, the crime of corporal injury on a spouse or cohabitant.
“And with respect to your plea—and that plea carries with it a possible sanction of two, three or four years in State Prison, or one year in County Jail if probation is granted. Is that your understanding?
“The Defendant: Yes.
“The Court: Court also understands that you plan to plead guilty to Count II, which is a violation of Penal Code Section 422, and that’s on or about November 24th, 2005, the crime of criminal threats, a felony, when you made threats that had the potential of resulting in great bodily injury to Jane Doe.
“That Penal Code Section 422 carries with it possible sanctions of 16 months, two or three years in State Prison, or one year in County Jail if probation is granted. Is that your understanding of that?
“The Defendant: Yes.
“¶ . . . ¶
“The Court: With respect to the admission of the allegation under Penal Code Section 1203 (E) (3), which, in that matter, is pursuant to, under Count I, that in the commission of the violation of Penal Code 273.5 (A), that being Count I, that makes you ineligible for probation; do you understand that?
“The Defendant: Yes, your Honor, I do.
“¶ . . . ¶
“The Court: With regard to the nature of the charges to which you plan to plead guilty, do you understand the nature of each of those offenses?
“The Defendant: Yes, your Honor.
“¶ . . . ¶
“The Court: And Mr. Rankin [defense counsel], have you discussed with Mr. Chavira the elements of each of his offenses, his possible defenses, his constitutional rights, as well as the direct consequences related to pleading guilty?
“Mr. Rankin: Yes.
“¶ . . . ¶
“Ms. Spaulding [the prosecutor]: I ask the Court to take notice of the preliminary hearing transcript.
“The Court: Okay. And in terms of the preliminary hearing transcript, is that a fair statement of the facts on which you base your plea, Mr. Chavira?
“The Defendant: Yes.
“The Court: Before you plead guilty and make these admissions, there are certain rights you must understand and give up.
“¶ . . . ¶
“The Court: [D]o you understand each of those rights?
“The Defendant: Yes, your Honor.
“The Court: And do you give up each of those rights?
“The Defendant: Excuse me?
“The Court: Do you give up each of those rights?
“The Defendant: Yes.
“¶ . . . ¶
“The Court: And with regard to your entry of these pleas of guilty, do you have any questions about what you are doing here today in that regard?
“The Defendant: No, your Honor, no questions.
“¶ . . . ¶
“The Court: The Court also has the attachment to the plea of guilty form for domestic violence cases, Mr. Chavira, and this is, again, numbered paragraphs which advise you that your plea of guilty to violation of Penal Code Section 273.5 has the maximum of two, three or four years State Prison and/or $6,000 fine. If probation is granted, a maximum of one year in County Jail.
“It also discusses consequences related to a second offense and the minimum probation conditions that would be imposed if you are granted probation.
“Along the left side of these enumerated points are blanks on which appear initials ‘JDCH’; are those your initials?
“The Defendant: Yes, your Honor.
“¶ . . . ¶
“The Court: With respect to, pursuant to Penal Code Section 1203 (E) (3), which makes you ineligible for probation, that allegation is based on the fact that you willfully inflicted great bodily injury or torture in carrying out this crime. Do you admit or deny that allegation?
“The Defendant: Excuse me, your Honor?
“The Court: Do you admit or deny that allegation?
“The Defendant: I admit.
“¶ . . . ¶
“The Court: [N]ow are you making your admissions and pleas of guilty freely and voluntarily because, in fact, you committed these offenses?
“The Defendant: Yes, your Honor, I do. I believe it’s the right thing to do and that’s why I plead guilty.
“The Court: Are you pleading guilty freely and voluntarily?
“The Defendant: Yes.
“The Court: And are you pleading guilty after having fully discussed these matters with your attorney?
“The Defendant: Yes.
“The Court: Have you had adequate time to discuss all these matters with your attorney?
“The Defendant: Yes, we have.
“The Court: Mr. Rankin, do you believe you’ve had sufficient time to discuss all these matters with Mr. Chavira?
“Mr. Rankin: Yes, I do.
“The Court: The Court finds that there’s a—based on the preliminary hearing—that there’s a factual basis for the pleas; that the pleas, admissions and waivers are made knowingly, voluntarily, and intelligently, and these matters shall be made a part of the minutes of the Court’s record. . . .”
The prosecution filed a sentencing statement arguing that defendant should receive the maximum state prison sentence of nine years eight months. Defendant, citing among other things a rule 4.413 “unusual” case sentencing factor, filed a sentencing memorandum arguing for a grant of probation.
At a hearing on June 9, 2006, defense counsel Rankin stated that defendant desired to withdraw his plea, declared a conflict with respect to that issue, and asked that a different attorney be appointed to represent defendant on that matter. The court said that it would obtain alternate counsel for defendant, and a second attorney was appointed on June 12, 2006 to represent defendant in connection with a potential motion to withdraw his plea.
Defendant then moved to withdraw his plea on the ground that the advisements he received regarding his eligibility for probation were “inadequate and confusing.” In support of the motion, defendant filed a declaration under penalty of perjury stating: “I went to school in Mexico and completed the ninth grade. [¶] I came to the United States in 1986. My first wife taught me English. I have had no classes in English or English speaking classes. I have taught myself to read some simple words in English. There are many words which I cannot read or understand. [¶] When I entered my guilty plea, I did not understand the probation consequences of my plea. I was confused when I was told I could receive probation and up to one year in the county jail and then told I was ineligible for probation. This is why I said ‘excuse me’ when the court asked me if I admitted the allegation. I believed at that time I had to admit the allegation. I realize now I should have asked for an additional explanation. Had I known and understood I could only get probation under certain limited conditions, I would not have entered a guilty plea. [¶] My attorney, John D. Posey, has prepared and read this declaration to me based upon what I have told him.” In its opposition to the motion, the prosecution argued among other things that defendant’s declaration was inadmissible hearsay.
At the September 20, 2006, hearing on the motion, the prosecution reiterated its objection to consideration of defendant’s declaration, arguing: “[W]hen the defendant’s statement is being offered by the defense, it is inadmissible hearsay. Without the opportunity for cross-examination, it is just improper to accept that statement from the defendant.” Defense counsel argued that the advisements at the plea hearing were inadequate because they did not indicate that he was presumptively ineligible for probation and explain what that meant. He was instead confusingly told, on the one hand, that he could be required to serve a year in county jail if he received probation, and, on the other hand, that he was not eligible for probation: “So as the record sits, those are two inconsistent positions. And I don’t think you can lose sight of the fact here that Mr. Chavira, while he does speak English and, frankly, I have been here when he’s not used the interpreter, but he has a limited education and I think, even for a person who speaks English on a—like this, where you’re told you can get the one year with probation and later told you cannot have probation, would be very confusing and conflicting, just on the record.”
Defendant was assisted by a Spanish language interpreter at the June 12 hearing when attorney Posey was appointed, at the September 20 hearing on the motion to withdraw the plea, and at the subsequent sentencing. No interpreter assisted at the preliminary hearing, or the June 9 hearing where attorney Rankin declared the conflict. At the outset of the May 4 plea hearing the court asked whether defendant needed an interpreter, and Rankin replied, “He does not.”
The court sustained the hearsay objection to defendant’s declaration and denied the motion to withdraw the plea, finding from a review of the transcript no inadequacy or inconsistency in the advisements at the plea hearing.
At the sentencing hearing, defense counsel Rankin stated that defendant’s guilty plea was entered over his objection.
II. WITHDRAWAL OF PLEA
Defendant contends that, for various reasons, the court should have granted his motion to withdraw his plea. “A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. ([§ 1018].) ‘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. [(People v. Cruz (1974) 12 Cal.3d 562, 566.)] The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’ [(People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.)]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)
“[A] trial court is obligated to advise a defendant of the direct consequences of a plea of guilty or no contest to a felony or misdemeanor before it takes the plea.” (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481 (Zaidi).) Failure to give a necessary advisement is a ground for withdrawal of the plea if the defendant establishes that he was prejudiced, i.e., that he would not have entered the plea if a proper advisement had been given. (In re Moser (1993) 6 Cal.4th 342, 352 (Moser).)
As has been noted, defendant’s admission of the section 1203, subdivision (e)(3) enhancement made him presumptively ineligible for probation. (See fn. 2, ante.) He argues that this presumptive ineligibility for probation was a direct consequence of the plea, and that the court failed to advise him of that consequence—instead, it confusingly and inconsistently told him that he could receive probation and that he was ineligible for it. Further, in defendant’s view, the court was required to do more than simply inform him that probation would be disfavored in his case; it was also required to advise him of “the factors necessary to overcome the statutory bar to probation,” i.e., the criteria set forth in rule 4.413 for establishing that his case was an unusual one warranting probation.
These arguments are based on People v. Caban (1983) 148 Cal.App.3d 706 (Caban), and People v. Spears (1984) 153 Cal.App.3d 79 (Spears), but neither case squarely supports defendant’s position. In Caban, the allegation the defendant admitted was an absolute bar to a grant of probation. (Caban, supra, 148 Cal.App.3d at p. 709.) The court held that “[p]reclusion from probation consideration” was a direct consequence of the admission, and thus that an advisement as to that preclusion was required. (Id. at p. 711.) Here, probation was disfavored, not foreclosed, by the admission. Spears, like the case at bench, involved pleas that “made probation legally possible, but statutorily disfavored and therefore less than probable.” (Spears, supra, 153 Cal.App.3d at p. 87 [distinguishing Caban].) Spears held that a defendant must be advised that probation will be disfavored because of his admission, but only when “the defendant, counsel, and the court appear to consider probation ‘likely.’ ” (Ibid.) Here, unlike Spears, there was no misconception that probation would likely be granted. To the contrary, defendant was told that he was ineligible for probation, and advised of conditions that would apply “if” probation were granted.
The People cite People v. Vento (1989) 208 Cal.App.3d 876 (Vento), for the proposition that a court is not required to inform the defendant that probation is disfavored “in the absence of promises of probation,” but Vento does not stand for that broad a rule. In Vento, as in Spears, the defendant was not told that his eligibility for probation would be limited. The Vento court rejected the defendant’s argument that his plea was improperly induced because, unlike the situation in Spears: (1) “the record [did] not show a climate of ‘real anticipation’ that probation was likely”; and (2) the defendant never moved to withdraw his plea, and gave “no indication at the time of sentencing that [he] was surprised by the statutory limitation on probation or that he felt the plea bargain was being breached either in letter or in spirit.” (Vento, supra, at pp. 879-880.) Since a motion to withdraw the plea was made here, Vento is also distinguishable.
The parties’ authorities, in sum, are inconclusive as to the need for an advisement in the circumstances presented here. Nothing in the cases suggests that a court would be required to elaborate on rule 4.413 “unusual case” criteria, and we are not persuaded that such an extensive admonition is necessary. “Common sense dictates that the court need only apprise defendant of the sentence possibilities in a general fashion. It is not necessary that defendant be given a detailed lecture on criminal procedure as it pertains to all the various dispositional devices available.” (Scoggins v. Superior Court (1977) 65 Cal.App.3d 873, 877.) However, we will assume for purposes of this opinion that defendant should have been informed simply that probation would be disfavored as a result of his plea, and proceed to the question of prejudice.
Defendant contends that the court effectively prohibited him from demonstrating prejudice by (1) refusing to consider his declaration in support of the motion to withdraw the plea, and (2) failing to ask Rankin about the nature of the conflict Rankin declared with respect to the motion. Defendant ventures that the latter inquiry might have revealed that Rankin did not adequately advise him of the consequences of the plea.
We find no merit to the argument concerning the inquiry of counsel. While it is true that “ ‘[w]hen a trial court knows . . . that defense counsel has a possible conflict of interest . . . it must inquire into the matter’ . . . [f]ailure by the trial court to make the necessary inquiry . . . is reversible error only if the defendant shows ‘that an actual conflict of interest existed and that that conflict affected counsel’s performance.’ ” (People v. Clark (1993) 5 Cal.4th 950, 999.) There can be no such showing on the motion to withdraw the plea in this case because the court appointed conflict-free counsel to handle the motion. Defendant’s second counsel was free to investigate any ineffective assistance in connection with the plea, and the court was not obliged to assist defendant in making a record for his motion.
On the other hand, we agree with defendant that the court should have considered his declaration in support of the motion. Although the declaration was hearsay (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354), it was admissible in the context of the plea withdrawal motion (see Code Civ. Proc., § 2009 [permitting use of affidavits in connection with motions]; § 1102 [making civil rules of evidence applicable to criminal actions]; People v. Johnson (2006) 38 Cal.4th 717, 731, fn. 13 [citing criminal cases applying Code Civ. Proc., § 2009]). Defendants routinely lodge their declarations with such motions (e.g., People v. Barella (1999) 20 Cal.4th 261, 264; Zaidi, supra, 147 Cal.App.4th at pp. 1479-1480), and the People concede that such affidavits are generally admissible. The People note that the court can decline to consider a defendant’s declaration when the defendant refuses to be cross-examined on it (People v. Williams (1973) 30 Cal.App.3d 502, 509-510), but defendant was not asked to testify and did not refuse to do so.
Defendant submits, based on federal cases, that the error was of constitutional magnitude; the People deem it “harmless under any standard.” An erroneous evidentiary ruling at trial “is generally considered under the Watson [People v. Watson (1956) 46 Cal.2d 818] standard of prejudice, but completely excluding evidence of a defendant’s defense theoretically could rise to a constitutional level and require application of the Chapman [Chapman v. California (1967) 386 U.S. 18] standard.” (People v. Corella (2004) 122 Cal.App.4th 461, 472.) We would grant that denying a defendant an opportunity to make any showing in support of a motion to withdraw a plea might implicate a constitutional right, but that is not what occurred here. Defendant’s motion was based primarily on the plea hearing transcript, which was filed in support of the motion and reviewed by the court in connection with its ruling. Accordingly, Watson applies, and the question is whether it is reasonably probable that the motion would have been granted if the declaration had been considered.
Defendant averred in his declaration, as required to show prejudice (Moser, supra, 6 Cal.4th at p. 352), that he would not have pleaded guilty had he known that his eligibility for probation would be limited. This claim of ignorance rested on two assertions: that he was not proficient in English, and that he was confused by the advisements at the plea hearing. A trial court is “not bound to give full credence to the statements in [a] defendant’s affidavit in support of his motion to withdraw his pleas of guilty” (People v. Beck (1961) 188 Cal.App.2d 549, 553) and it is unlikely, for a number of reasons, that the court would have believed defendant here.
First, defendant’s claim that he was hampered by limited language skills was undermined by his attorneys, who declined the offer of an interpreter at the plea hearing, and conceded that “he does speak English.” Defendant evidently did not think to request an interpreter before seeking to withdraw his plea, and there was good reason to be skeptical of his need for one.
Second, accepting defendant’s contention that presumptive ineligibility for probation was a direct consequence of the plea, his professed ignorance of that consequence was contradicted by his counsel’s representation at the plea hearing that they had discussed such consequences. It is unlikely that the court would have credited defendant’s self-interested claim to the contrary, or that counsel, who showed in his sentencing memorandum that he was aware of the applicability of rule 4.413, would have painted any bright prospects for probation. And entirely apart from the advice defendant likely received from counsel, nothing in the record could have given defendant the impression that probation was probable. He was merely told of conditions that would be imposed “if” probation were granted, and he acknowledged in his plea form that probation had not been promised.
Third, defendant’s professed confusion at the plea hearing is belied by the transcript, which shows that the court took considerable care to confirm that the plea was intelligent and voluntary. At two points during the extended colloquy defendant asked that a question be repeated by saying, “Excuse me?” but, in light of his unhesitating assent to all of the other questions that were asked, it appears more likely that he did not hear those two questions than that he did not understand them.
Fourth, the court had more than the cold transcript to go on in assessing whether defendant was in fact confused at the plea hearing. When it ruled on the motion, the court “recall[ed] going through the questions with Mr. Chavira.” Having taken the plea, the court would have known whether defendant betrayed any sign at the hearing of the confusion he later professed.
Fifth, while it is true that the advisements about probation were contradictory and potentially confusing, the problem stemmed from understating, not exaggerating, the likelihood of probation. If defendant was really pleading guilty because he was hoping for probation, and not just because “it’s the right thing to do” as he stated at the hearing, then the court’s statement that he was “ineligible” for probation would presumably have caused him to double-think what he was doing.
Accordingly, we do not believe that consideration of the declaration would have changed the outcome of the motion.
It was not an abuse of discretion to deny the motion to withdraw the plea.
III. FACTUAL BASIS FOR PLEA
Defendant argues that the evidence at the preliminary hearing did not provide a factual basis for his admission that he “willfully” inflicted great bodily injury on Jane Doe within the meaning of section 1203, subdivision (e)(3). (§ 1192.5 [court must satisfy itself that there is a factual basis for the plea].) We disagree.
Doe testified at the preliminary that she remembered washing her hands in the master bedroom of her home around 10:30 a.m. on December 20, 2005, and waking up on the floor bleeding from her nose and mouth and a scar on her face. She did not know how she was struck, but knew she had been attacked, and believed that defendant, the father of her youngest child, was the one who hit her. He was the only one who had ever hit her, they fought every time they saw each other, and he threatened to kill her “[a]ll the time.”
Marin County Sheriff Detective interviewed J.T., another of Doe’s children with a different father, who said that Doe became angry with defendant during breakfast one day, and defendant followed Doe when she went upstairs to her room. When they came back downstairs sometime later, Doe was crawling and had scratches on her face. Defendant walked out the front door and Doe told J.T. to lock it.
Marin County Deputy Sheriff Rebecca Leonard went to Doe’s house on the evening of December 24, 2005, in response to a report that someone was there in violation of a restraining order and found defendant hiding in a closet. She noticed Doe’s facial injuries and called an ambulance. Doe suffered a concussion and facial fractures in the assault. She still had “an extremely black eye” when she testified at the hearing two months after the incident. Her ongoing symptoms included vomiting, dizziness, and “extreme migraines daily.”
It could be reasonably inferred from the testimony to the extent of the injuries and how they occurred that defendant hit Doe with extreme force and willfully inflicted the great bodily injury she suffered.
IV. DISPOSITION
The judgment is affirmed.
We concur: Stein, J., Swager, J.