Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK-CRCR-09-0090545-02.
SEPULVEDA, J.
Defendant appeals from a judgment entered on his plea to one count of felony possession of marijuana for sale (Health & Saf. Code, § 11359). He argues that the trial court should have permitted him to withdraw his plea because (1) he received ineffective assistance of counsel when deciding whether to plead guilty, and (2) his plea was involuntary because it was obtained pursuant to a coercive “package-deal” bargain. We disagree and affirm.
I. Factual and Procedural
Background
According to the probation report and a police report (defendant waived his right to a preliminary hearing), defendant was arrested on April 4, 2009, after sheriff’s deputies interrupted what they believed to be a marijuana drug deal. Mendocino County sheriff’s deputies were patrolling on Bell Springs Road shortly after midnight, when they saw three vehicles (a pick-up truck, a car, and a sports-utility vehicle (SUV)) parked on the side of the road. A man (later identified as Thomas Eugene Ganey) was standing near the SUV, three people were inside the SUV, two people were inside the car, and two people were inside the truck. As a deputy approached the SUV to ask what the occupants of the vehicles were doing, he smelled a strong odor of marijuana coming from the SUV. A search of the SUV revealed a garbage bag filled with 10 smaller bags each containing about one pound of marijuana, a purple plastic bag also containing marijuana, a large vacuum-sealed bag containing bundles of money totaling about $59,700, several bundles of “ ‘loose’ ” money totaling about $37,400, and a duffle bag containing cash and a laptop. A search of the truck also revealed a large garbage bag filled with 10 bags, each containing about one pound of marijuana.
Defendant and his wife were located in the car, the cargo area of which had a strong odor of marijuana. A search of the car revealed one purple plastic container (similar to the one in the SUV), a handbag containing two unopened boxes of vacuum storage bags, a cardboard box containing two more vacuum storage bags, “large amounts” of cologne (which a deputy knew from his training and experience is used to mask the smell of packaged marijuana), and an open container of what appeared to be potato soup. When deputies later processed the marijuana found in the SUV, they noticed a “white soupy film” that smelled like soup on the exterior of the bag (consistent with the soup found in defendant’s car), an indication that the marijuana found in the SUV at one point had been in the car where defendant was found.
On May 4, 2009, the district attorney filed a complaint against defendant, his wife, and the six other people involved in the suspected drug deal. Defendant and the others were accused of felony transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)—count one), felony possession of marijuana for sale (Health & Saf. Code, § 11359—count two), felony receipt of proceeds from a transaction involving proceeds in excess of $25,000 (Health & Saf. Code, § 11370.9, subd. (a)—count three), and felony transfer of funds from a transaction involving proceeds in excess of $25,000 (Health & Saf. Code, § 11370.9, subd. (b)—count four).
The case was resolved following two guilty pleas entered on November 3, 2009. First, as part of a plea deal, codefendant Ganey (the man who was found standing outside the SUV when police first approached the vehicles suspected to be involved in a drug deal) pleaded guilty to possession of marijuana for sale (count two) in exchange for dismissal of the remaining counts against him in this case, and the dismissal of a separate case against him and his wife (who was not involved in this case). After Ganey’s plea, the trial court told the remaining defendants in this case to return at 10 a.m. for a chambers conference.
Later that day, the prosecutor stated that there was a resolution of the case, “as discussed at length this morning” (presumably, a reference to the chambers conference). The prosecutor and defense counsel stated that the understanding was that defendant would plead guilty to count two of the complaint (possession for sale of marijuana), and the prosecution would not argue for more than 90 days in jail at sentencing. As discussed in more detail below, the trial court advised defendant of the rights he was giving up in pleading guilty and some of the consequences of a conviction on count two, and the court also inquired about whether defendant understood the rights he was giving up and whether defendant had been threatened or intimidated in any way in order to persuade him to plead guilty. The court also asked defendant whether any promises had been made to him in exchange for the plea other than what had been stated in open court and on the record, and defendant responded, “No, sir.” After defendant stated that he had not been threatened and that he understood the rights he was giving up, he pleaded guilty to count two. The trial court then dismissed the remaining counts as to defendant on the People’s motion.
The court also dismissed all charges against the remaining six defendants (including defendant’s wife), and it is clear from the record that this was the result of defendant’s guilty plea. Before the hearing ended, counsel for one of defendant’s codefendants stated that “since we haven’t been on the record prior, probably all the rest of us [presumably, other defense counsel] need to announce our appearances.” The court acknowledged that all counsel were present, and explained, “There were discussions that went through most of the morning and this is a result of those discussions.” In subsequent hearings, the prosecutor stated that charges against the six codefendants had been dismissed as a result of defendant’s plea.
On January 6, 2010, the date set for sentencing, defendant’s counsel stated that defendant was considering withdrawing his plea. After the case was continued a few times to allow defendant time to file a motion to withdraw, and after a new attorney substituted in as counsel of record for defendant, on April 2, 2010, defendant filed a motion to withdraw his plea pursuant to Penal Code section 1018. He argued that his plea had not been voluntary, because the other defendants and their attorneys had pressured him to plead guilty as part of a package deal, and two of his codefendants had made threatening remarks to him. He also claimed that his previous attorney had been ineffective for failing to advise him of the consequences of his plea in this case on a case pending in Los Angeles County (in which he was represented by a different attorney). Specifically, he claimed that the Los Angeles County case included an allegation pursuant to section 12022.1 that defendant had committed the crime while released on bail in this case and that the allegation exposed defendant to an additional two years in prison. However, no pleading or court records from the Los Angeles case appear in the record in this case.
All further statutory references are to the Penal Code.
In support of his motion to withdraw his plea, defendant submitted a declaration stating that he felt pressure from other defendants and their attorneys to plead guilty so that the charges against his codefendants would be dismissed. As discussed in more detail below, defendant specifically claimed that two codefendants made threatening remarks to him before his plea. Defendant also declared that his attorney did not explain that a conviction in this case would “require” that he receive an additional two-year state prison enhancement in his case in Los Angeles and that had he been aware of the detrimental effect of pleading guilty in this case, he would not have entered a guilty plea but would have insisted on going to trial.
The same judge who took defendant’s plea presided over defendant’s motion to withdraw. In response to defense counsel’s argument that the plea in this case would increase defendant’s sentence in the Los Angeles case, the court stated: “It could. I guess that’s what I’m struggling with. It could increase it. It could result in a dismissal in exchange for a plea, like things were dismissed in this case. It could—they could find him not guilty totally of that case. I mean, it doesn’t necessarily mean because it’s charged in that case that he’s going to be found or required to do the additional two years.” In response to the trial court’s question about when the case in Los Angeles was filed, defendant’s counsel represented, consistent with what was stated in the moving papers, that defendant was arrested in the Los Angeles case on April 17, 2009, about two weeks after his arrest in this case. This response was inconsistent with the probation department’s sentencing report, which stated that defendant was “involved in a matter that happened before this case in Los Angeles.” (Italics added.)
Regarding the plea deal, defendant’s counsel claimed that the “only reason” defendant was chosen as the person to enter a plea was because he had “a prior record from 20 years ago” (a reference to a 1992 conviction in Chicago for conspiracy to possess with intent to distribute LSD). The prosecutor disagreed that defendant’s prior record was the only reason defendant was selected to enter a plea, and the court concurred, stating, “Well, it certainly wasn’t the reason stated to the Court.” However, the court did not specify what it was told.
The trial court denied defendant’s motion, stating, “I’ve read the transcript. I don’t see anything in the transcript that indicates that he wasn’t entering his plea voluntarily. I know what his declaration alleges, but I don’t think that in and of itself is enough to persuade the court that it wasn’t voluntarily entered.”
The trial court suspended imposition of sentence and placed defendant on probation for a term of 36 months, with a condition that he spend 90 days in jail. Defendant obtained a certificate of probable cause and filed a timely notice of appeal.
II. Discussion
A. Ineffective Assistance of Counsel.
Defendant first argues that he should have been permitted to withdraw his plea, because he received ineffective assistance of counsel before he pleaded guilty. Section 1018 permits the withdrawal of a plea upon a showing by defendant, by clear and convincing evidence, of good cause. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) A showing of ineffective assistance of counsel may amount to good cause to permit a withdrawal of a plea. (People v. Reed (1998) 62 Cal.App.4th 593, 596-597.)
“To demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (In re Alvernaz (1992) 2 Cal.4th 924, 936-937 (Alvernaz), original italics; Strickland v. Washington (1984) 466 U.S. 668.) “The pleading—and plea bargaining—stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.]” (Alvernaz at pp. 933-934.) “[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial.” (Id. at p. 934; In re Vargas, supra, 83 Cal.App.4th at p. 1133.)
Defendant claims that his trial attorney’s performance was deficient, because counsel did not inform him that his guilty plea would expose him to a two-year sentencing enhancement in the case pending in Los Angeles County, pursuant to section 12022.1. Respondent argues that the record fails to disclose the most basic component of his claim; namely, that defendant was subject to criminal prosecution that included an allegation pursuant to section 12022.1, or that he still faces charges (including an on-bail enhancement) in Los Angeles County. We agree. The attorney who represented defendant at the hearing on his motion to withdraw his plea stated that his office also represented defendant in the case pending in Los Angeles. In response to the trial court’s question about when the Los Angeles case was filed, counsel responded, “The L.A. case, I don’t have an exact date. The arrest in the L.A. case happened on April 17, 2009. I believe the first arraignment probably was in May or June of 2009.” However, the probation department was under the impression that the case in Los Angeles County (which involved a medical marijuana dispensary) “happened before this case.” (Italics added.) The timing of the Los Angeles case therefore is unclear.
The statute provides, in relevant part: “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.” (§ 12022.1, subd. (b).) A “ ‘primary offense’ ” is defined as “a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final....” (§ 12022.1, subd. (a)(1); see also In re Ramey (1999) 70 Cal.App.4th 508, 512 [conviction of primary offense is essential prerequisite to imposition of on-bail enhancement].) A “ ‘secondary offense’ ” is defined as “a felony offense alleged to have been committed while the person is released from custody for a primary offense.” (§ 12022.1, subd. (a)(2).)
Under a section titled “COLLATERAL INFORMATION, ” the probation department also reported: “The defendant is currently going through court proceedings in a matter in which the dispensary that his family owns is involved. However, this matter was prior to the present matter before the Court today.” Although perhaps not artfully worded, “this matter” apparently refers to the Los Angeles County case, meaning that that Los Angeles case preceded this case.
Defendant characterizes respondent’s argument regarding the sufficiency of the record as “frivolous” in light of the record in defendant’s petition for a writ of habeas corpus filed in this court. (In re Gaines, A130154.) He also states that there were “multiple references” below to the Los Angeles case, that the People never disputed below that defendant faced the allegation because “it was something that was available in the public record, ” and that these “are proper matters for the court to take judicial notice.” However, defendant has submitted no request for judicial notice, and he likewise points to no “public record” in the record of this appeal or in his habeas petition showing that he in fact faced an on-bail enhancement, or any evidence of whether he still faces such an enhancement (or any charges, for that matter). In the absence of any pleadings from the Los Angeles case establishing that defendant actually faced an on-bail enhancement, or any evidence whatsoever on the status or outcome of that case, it is impossible for this court to determine whether defendant suffered prejudice as a result of allegedly not knowing the effect of a guilty plea in this case on the Los Angeles case. As the trial court stated when it denied defendant’s motion to withdraw, “it doesn’t necessarily mean because it’s [the on-bail enhancement] charged in that [Los Angeles] case that he’s going to be found or required to do the additional two years.” We reject defendant’s ineffective assistance of counsel claim.
We deny today by separate order defendant’s petition for a writ of habeas corpus.
B.“Package-Deal” Plea.
Defendant also renews his argument, raised below, that his plea was involuntary because it was obtained pursuant to a coercive “package-deal” plea bargain, defined by the Supreme Court as one in which the prosecutor offers a defendant the chance to plead guilty to a lesser charge, and receive a reduced sentence, contingent upon all codefendants pleading guilty. (In re Ibarra (1983) 34 Cal.3d 277, 286 (Ibarra), abrogated on other another ground as stated in People v. Mosby (2004) 33 Cal.4th 353, 360.) “It has long been established that guilty pleas obtained through ‘coercion, terror, inducements, subtle or blatant threats’ are involuntary and violative of due process.” (Ibarra at p. 287.) “[A] ‘package-deal’ plea bargain is not intrinsically coercive, but may be so under the individual circumstances.” (Id. at pp.283-284.) The California Supreme Court requires an inquiry into the totality of the circumstances whenever a plea is taken pursuant to a package-deal bargain, to determine whether there are any unduly coercive forces that might render such a plea involuntary. (Id. at p. 288.) The trial court must inquire into (1) whether the inducement for the plea is proper, (2) the factual basis for the plea, (3) the nature and degree of coerciveness, (4) whether the promise of leniency to a third party was a significant consideration in a defendant’s choice to plead guilty, and (5) any other factors which may be relevant (such as defendant’s age and which party initiated plea negotiations). (Id. at pp. 288-290.)
A trial court’s failure to make an adequate inquiry does not mandate reversal. (Ibarra, supra, 34 Cal.3d at p. 290 & fn. 6.) A plea cannot be set aside unless a defendant demonstrates prejudice; that is, the defendant must show that his guilty plea was involuntary under the standards set forth by the Supreme Court (id. at pp. 288-290) “and should not have been accepted by the trial court.” (Id. at p. 290.) This showing must be made whether a defendant challenges a plea on appeal or by way of a petition for a writ of habeas corpus. (Id. at p. 290, fn. 6.)
We review a trial court’s decision refusing to allow a defendant to withdraw a guilty plea based on alleged coercion for abuse of discretion. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123 (Sandoval).) “ ‘ “The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.” [Citation.]’ ” (Ibid.) “ ‘ “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. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion [Citations.]” [Citation.] “Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.” [Citation.]’ ” (Ibid.)
It is clear from the record that the trial court held lengthy (but apparently unreported) discussions regarding defendant’s plea, as the court stated that the plea was the result of “discussions that went through most of the morning.” The prosecutor also stated before defendant pleaded guilty that a negotiated disposition of the case was discussed “at length” that morning. Although the trial court may have inquired during those lengthy discussions regarding the totality of the circumstances regarding the plea, the trial’s court on-the-record inquiry into defendant’s plea did not cover all the factors set forth in Ibarra, supra, 34 Cal.3d at pages 288-290.
As for whether the inducement for the plea was proper, the trial court “should be satisfied that the prosecution has not misrepresented facts to the defendant, and that the substance of the inducement is within the proper scope of the prosecutor’s business. [Citation.] The prosecutor must also have a reasonable and good faith case against the third parties to whom leniency is promised.” (Ibarra, supra, 34 Cal.3d at pp. 288-289, fn. omitted.) No such inquiry was made of defendant on the record; in fact, there was no indication when the trial court was taking defendant’s plea that it was part of a “package deal, ” whereby charges would be dismissed against defendant’s codefendants. The court therefore likewise did not inquire into the “nature and degree of coerciveness” of the plea, examine whether there was a “special relationship” with a third party offered leniency, or inquire whether leniency to a third party was a significant consideration in defendant’s choice to plead guilty. (Id. at pp. 289-290.)
The trial court did, however, consider the factual basis for defendant’s guilty plea. (Ibarra, supra, 34 Cal.3d at p. 289.) The prosecutor and defendant’s attorney stipulated that the police report provided a factual basis for the plea, and the trial court accepted the report as an exhibit, “in case there are any questions.” The trial court also asked defendant whether he or any member of his family had “been threatened or intimidated in any way in order to get you to enter this plea, ” and defendant responded, “No, sir.”
In denying defendant’s motion to withdraw his plea, the trial court stated that when taking a plea to a felony, “I want to be able to look at the person. I want to give them a chance to look at me. I want to have a dialogue with them. I want to be convinced in my own mind that they are voluntarily entering the plea.”
Although we agree with defendant that the trial court did not adequately inquire (at least, not on the record) into the totality of the circumstances of defendant’s package-deal plea, we disagree that defendant has shown he was prejudiced by the lack of inquiry, or that the trial court abused its discretion in not permitting defendant to withdraw his plea. (Ibarra, supra, 34 Cal.3d at p. 290 & fn. 6; Sandoval, supra, 140 Cal.App.4th at p. 127.) Defendant’s declaration in support of his motion to withdraw his plea contains two paragraphs regarding plea discussions: “A. My discussion with my attorney regarding the plea bargain was done in the presence of the other defendants and their attorneys. I felt pressure from the other defendants and their attorneys to accept the offer and enter a plea of guilty so that their cases would be dismissed. I specifically recall other defendants and their attorneys telling me to take the deal while I was trying to speak with my attorney in the hallway. [¶] B. I felt pressured and coerced from other co-defendants in the case to enter into the guilty plea. On the day I entered the plea, Defendants [Mutasim Ahmeed] Odeh and [Demes Mahmoud] Demes were pressuring me to accept the offer and whispered under their breath that they ‘knew where my wife lived.’ I took this statement to be a threat against my wife if I did not enter the guilty plea. At the time of the plea in open court, the defendants were right behind me and I felt coerced and threatened into entering my plea.”
Defendant’s declaration omits any reference to the apparently lengthy plea discussions held with the trial court and the prosecutor. And although defendant claims that two codefendants “whispered under their breath that they ‘knew where my wife lived, ’ ” he is otherwise short on specifics regarding the “pressure” he felt from the other defendants and their attorneys. This case therefore is readily distinguishable from Sandoval, supra, 140 Cal.App.4th 111, upon which defendant relies. In Sandoval, the prosecutor informed the trial court that he had offered a package deal to four defendants accused of murder, whereby the People would agree to enter into a plea agreement only if all four defendants accepted it. (Id. at pp. 115-117.) Defendant Sandoval’s attorney and defendant both stated on the record that Sandoval did not want to plead guilty. (Id. at p. 117.) The trial judge thereafter stated that Sandoval was being “selfish” in insisting on proceeding to trial, expressed the belief that “the package deal was ‘an amazing offer, ’ ” and said the court sympathized with the three defendants who were willing to accept the plea deal but were prevented from doing so because of Sandoval’s refusal to accept the offer. (Id. at pp. 118-120.) Sandoval pleaded guilty following the judge’s remarks. (Id. at p. 120.) At an evidentiary hearing on Sandoval’s subsequent motion to withdraw his plea, one of Sandoval’s codefendants testified that he had threatened defendant’s life before Sandoval agreed to plead guilty, the codefendant’s attorney also testified that he later learned of those threats, and defendant’s attorney at the time he pleaded guilty testified that defendant had insisted on proceeding to trial the entire time she represented him until the morning he agreed to accept the plea offer. (Id. at pp. 121-122.) The trial court denied defendant’s motion to withdraw, but the appellate court reversed, finding that there was “abundant evidence that Sandoval’s guilty plea was the product of coercion.” (Id. at p. 127.)
Here, by contrast, there was no such abundant evidence that defendant’s guilty plea was the product of coercion. Defendant claims on appeal that “promised leniency” against his pregnant wife and “the circumstances in which the terms of the plea were explained” to him indicate that his plea was not a product of his own free will. However, his declaration made no mention of how leniency toward his wife affected his decision to plead guilty, and it did not describe the circumstances under which the terms of the plea deal were explained to him. Defendant also claims that leniency promised to his wife and the pressure exerted by other defendants “were significant and substantial factors in his decision to plead guilty.” (Original italics.) Again, however, defendant did not say this in his declaration supporting his motion to withdraw.
More to the point, defendant has not shown that his plea was involuntary under the standards set forth in Ibarra or that his guilty plea should not have been accepted by the trial court. (Ibarra, supra, 34 Cal.3d at pp. 288-290.) Defendant downplays the evidence against him, arguing that he was “singled... out” because of “his long-past criminal record; not because of the evidence against him.” First, both the prosecutor and the trial court disagreed that defendant’s criminal record was the sole reason for focusing on defendant to plead guilty. Second, defendant simply ignores the fact that according to the police report, soup was found both in defendant’s car and in the black garbage bag containing approximately 10 pounds of marijuana found in another vehicle, suggesting that the marijuana had at one time been in defendant’s car. He also ignores the evidence that defendant’s car smelled of marijuana and contained items associated with the sale of the drug.
Under the particular facts of this case, we conclude that the trial court did not abuse its discretion when it denied defendant’s motion to withdraw his plea.
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.