Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC64305A
Bruiniers, J.
Appellant Meliton Lara seeks to withdraw his plea of nolo contendere to a felony charge of receiving stolen property (Pen. Code, § 496, subd. (a)). Lara alleges that he received ineffective assistance of counsel both at the time of his plea, and in connection with his subsequent unsuccessful motion to withdraw his plea. We affirm the trial court’s denial of Lara’s motion.
All further code references are to the Penal Code unless otherwise indicated.
I. Background
Lara was arrested on March 28, 2007, by San Mateo Sheriff’s Deputy Bryan Watt. Watt found Lara slumped over the steering wheel of a parked vehicle near Montara State Beach, and Lara displayed symptoms of intoxication when contacted. A search of Lara’s vehicle revealed a purse containing a wallet, student ID, and a credit card that had been reported stolen in connection with an auto theft about a month earlier. Also in the vehicle was a laptop computer identified as stolen in an auto burglary in Sacramento in August 2006. Two “punch type” tools, which Watt opined were burglary tools, also were found in the car, and Lara had blue latex gloves, a marijuana pipe, and marijuana on his person.
Lara was charged with one felony count of possession of stolen property (§ 496, subd. (a)), a misdemeanor count of possessing burglar tools (§ 466), and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The information further alleged that Lara had suffered a prior juvenile adjudication under section 422 which would constitute a felony “strike” for sentencing purposes (§ 1170.12, subd. (c)(1)).
On November 19, 2007, Lara, with the assistance of a Spanish language interpreter, entered a plea of nolo contendere to the felony charge, with a promise that he would not be then sentenced to state prison but could receive up to one year in the county jail as a condition of probation. The remaining charges, and the sentencing enhancement allegation, were dismissed. Lara was represented by privately retained attorney Ruben Munoz (Munoz), as he was at the preliminary hearing. The court conducted voir dire of Lara on the record to confirm his understanding of his waiver of rights and the consequences of his plea, and found a knowing, voluntary, and intelligent waiver of rights.
On February 22, 2008, Munoz was relieved as counsel, and the court appointed the office of the Private Defender to represent Lara. No transcript of this proceeding is provided, but the clerk’s minutes indicate that the case was continued to April 4, 2008, both for sentencing and for a motion by Lara to withdraw his plea. Appointed counsel Patrick Concannon (Concannon) initially appeared with Lara on April 4, 2008. The matter was further continued, and Lara’s motion to withdraw his plea was ultimately filed on July 7, 2008. No grounds were set forth in the motion, and counsel stated that Lara “will attempt to establish good cause at the time of the hearing.”
The motion was heard on September 19, 2008. Lara testified that he had read the plea form (which was in Spanish), and that Munoz had reviewed the form with him and explained it. Lara claimed that he had signed the form and entered his plea because he was “nervous” and “pressured” and that his lawyer told him that it was the “best thing,” even though Lara himself did not think so. He also testified that he was “suffering from depression,” although he had not sought medical treatment. Munoz advised him that if he did not accept the plea bargain, he would probably lose the case, and that he would likely go to prison. Lara initially testified that he did not tell Munoz that he did not wish to enter the plea. On cross-examination, Lara contended that he had in fact told Munoz that he did not wish to plead, and that Munoz had told him that he “had to sign” and that it was “the best thing to do.” The court found no good cause to permit withdrawal of the plea, noting that “it does not appear to be a close question” and that “[c]hanging someone’s mind is just not anywhere close to a sufficient basis for withdrawing the plea.”
Lara was then placed on probation for a term of three years. Among the conditions of probation was a requirement that Lara serve a term of six months in county jail. Lara then retained new counsel, and obtained a certificate of probable cause to permit this appeal (§ 1237.5). In his application for the certificate of probable cause, Lara alleged that both his retained and appointed attorneys failed to investigate and present exculpatory evidence, and that Munoz had further rendered ineffective assistance in failing at the preliminary hearing to seek reduction of the felony charge to a misdemeanor, pursuant to section 17, and by failing to advise Lara of the adverse immigration consequences of his plea. Lara filed a timely notice of appeal.
Lara’s incarceration has been stayed pending resolution of this appeal.
II. Discussion
Significantly, Lara does not assert that the trial court abused its discretion in denying his motion to withdraw his plea. (See People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [denial of motion to withdraw guilty plea will not be disturbed on appeal absent a showing the trial court abused its discretion]; § 1018.) Nor does Lara argue here that his plea was defective due to failure of attorney Munoz to advise him of the potential immigration consequences of his plea. Rather, in this appeal he raises only the claim that attorneys Munoz and Concannon provided ineffective assistance, and contends that accordingly we should order withdrawal of his plea as the remedy for that incompetence.
While raised in his notice of appeal, no such argument is presented in Lara’s briefs, and the issue is therefore waived. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) The record below, in any event, affirmatively reflects that Lara was advised by the court of the potential immigration consequences of his plea, and that he acknowledged this advice both orally and in the signed plea form. Attorney Munoz declared that, while he had no independent recollection of discussing immigration consequences with Lara, it was his practice to do so, and that he reviewed the plea form (which contains the advisement) with Lara through the interpreter before entry of the plea. (Cf. In re Resendiz (2001) 25 Cal.4th 230, 251 [affirmative misstatements by counsel regarding deportation may constitute ineffective representation despite advisement from the court].)
We also note, as discussed post, that Lara seeks to rely in part on matters not properly part of the evidentiary record before the court below. It is for this reason that a claim of ineffective assistance of counsel is normally appropriately raised in a petition for writ of habeas corpus, “where relevant facts and circumstances not reflected in the record on appeal... can be brought to light....” (See People v. Snow (2003) 30 Cal.4th 43, 111.)
By order of February 18, 2009, we granted Lara’s motion to augment the record to include his Declaration in Support of Application for Certificate of Probable Cause and two supporting exhibits. Those documents appear to have been already included within the Clerk’s Transcript.
To establish incompetency of counsel, Lara relies heavily on his current counsel’s declaration and the supporting attachments, submitted to the trial court in support of his request for a certificate of probable cause (§ 1237.5) as substantive evidence. He suggests that the trial court made a “finding of prejudice” based on prior counsel’s inadequacies in granting his request for the certificate. The trial court made no such determination, and the question of competence of counsel was never raised or considered in the trial court as a basis to set aside Lara’s plea. The certification requirement under section 1237.5 “merely sets forth a procedure for precluding frivolous appeals by requiring the defendant to set forth grounds for appeal and, if he does so, by requiring the trial court to rule on the issue of probable cause.” (People v. Ribero (1971) 4 Cal.3d 55, 62.) The term “probable cause” in section 1237.5 does not mean a finding that there is a probable ground for reversal of the judgment, but only whether or not “the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion. [Citations.]” (Id. at p. 63, fn. 4.) Section 1237.5 requires the trial court to certify any arguably meritorious appeal to the appellate courts and if the statement submitted by the defendant presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause. (See In re Brown (1973) 9 Cal.3d 679, 683, fn. 6 (Brown), disapproved on other grounds in People v. Mendez (1999) 19 Cal.4th 1084, 1097–1098 & fn. 7; People v. Warburton (1970) 7 Cal.App.3d 815, 820.)
Section 1237.5 provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other 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.”
No verified petition seeking writ relief was filed in the trial court. (See People v. Adams (1980) 101 Cal.App.3d 791, 802.)
We nevertheless address the merits of Lara’s claim of ineffective assistance of counsel to the extent we are able to do so on the record properly before us.
Ineffective Assistance of Counsel
Lara’s arguments can be summarized as follows: 1) Attorney Munoz rendered ineffective assistance in (a) failing to adequately investigate potentially exculpatory evidence, and (b) failing to move at the preliminary hearing, pursuant to section 17, subdivision (b), for reduction of the felony charge to a misdemeanor; 2) Attorney Concannon was incompetent in (a) failing to adequately conduct his own investigation, and (b) failing to present evidence of, and to argue, Munoz’s incompetence.
The standard of review for an ineffective assistance of counsel claim is well settled. A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. To establish a claim of incompetence of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686–688, 694–695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92–93; People v. Ledesma (1987) 43 Cal.3d 171, 215–218.) Generally, prejudice must be affirmatively proved. (Strickland, supra, at p. 693.) To prevail, a defendant must establish incompetence of counsel by a preponderance of evidence. (People v. Ledesma, supra, at p. 218.) As an ineffective assistance of counsel claim fails on an insufficient showing of either element, a court need not decide the issue of counsel’s alleged deficiencies before deciding if prejudice occurred. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Strickland, supra, at p.689.) There is a strong presumption that counsel rendered “adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Id. at p. 690.)
Munoz’s Representation of Lara
Lara’s contention that Munoz’s representation fell below objective standards of reasonableness is premised primarily on a claim of factual innocence which he contends would have been established by witnesses who were not interviewed or presented, and an argument that Munoz “coerced” his plea. In support of this contention Lara references a private investigator’s report of interviews with the witnesses, including the owner of the purse and wallet found in his car and his sister-in-law who purportedly gave or sold the laptop computer to Lara. Lara also presents a declaration of Munoz in which Munoz states, among other things, that he was aware of these witnesses but had not interviewed them. Even if we assume that these documents are properly before us on this issue, Lara’s claim fails.
We consider the declaration of Lara’s current counsel to be of no evidentiary value on the issues before us. His exhibits included documents purporting to indicate that the alleged burglar tools found in Lara’s car were part of a tire repair kit, and that the stolen Dell computer found in Lara’s car was of limited value. These documents also have no significance in our assessment of Lara’s claims, even assuming they are properly part of this record.
“By pleading guilty, a defendant admits the sufficiency of the evidence establishing the crime, and is therefore not entitled to a review on the merits. [Citations.] ‘[I]ssues which merely go to the guilt or innocence of a defendant are “removed from consideration” by entry of the plea.’ [Citation.]” (People v. Meyer (1986) 183 Cal.App.3d 1150, 1157.) By admitting a charge, a defendant waives his right to assert defenses to it, and the existence of a certificate of probable cause cannot widen the scope of review to include noncognizable issues. (People v. Marlin (2004) 124 Cal.App.4th 559, 567 (Marlin).) In Marlin, the court considered a claim that counsel was ineffective in failing to investigate and present a contributory negligence defense to a vehicular homicide charge, and held that such a claim was not reviewable on a certificate of probable cause following entry of a plea, since it did not go to the legality of the proceedings within the meaning of section 1237.5. (Ibid.) We agree.
As in Marlin, here Lara “accepted the plea bargain and entered his plea knowing his attorney would not assert the defense on his behalf. By thereafter admitting the offense and waiving defenses to the charge, defendant necessarily waived a claim that his attorney was ineffective for failing to present the defense that defendant thought he might have had. He knowingly gave up that defense in order to take advantage of a plea bargain. He cannot revive it now by claiming his attorney was ineffective for not presenting it.” (Marlin, supra, 124 Cal.App.4th at p. 567.)
As Marlin recognized, “[u]nder some circumstances, ineffective assistance of counsel can be a constitutional question going to the legality of the proceedings.” (Marlin, supra, 124 Cal.App.4th at p.567 [citing Brown, supra, 9 Cal.3d at p. 682].) Our Supreme Court in Brown denied consideration of a claim of ineffective assistance of counsel on habeas corpus on the ground that the claim was appealable under section 1237.5. (Brown, supra, 9 Cal.3d at pp. 682–683.) Brown relied upon People v. Natividad (1963) 222 Cal.App.2d 438, 441, which applied the now rejected standard of whether the attorney’s lack of competent representation had reduced the proceedings to a “farce or a sham.” (See People v. Ibarra (1963) 60 Cal.2d 460, 464, repudiated in People v. Pope (1979) 23 Cal.3d 412, 421–422 [adopting standards of U.S. Const., 6th Amend. & Cal. Const., art. I, § 15].)
To the extent that Lara’s claim is cognizable at all, the evidence he submits establishes that: Munoz was aware of the potential exculpatory information, discussed it with Lara, and advised Lara that his defense “didn’t seem believable”; Munoz told Lara that, considering his “strike” prior conviction, Munoz believed that Lara would go to prison if he went to trial and lost. Munoz acknowledged that he had advised Lara to plead guilty, despite Lara’s reluctance, but denied that he had coerced him into doing so.
We are, of course, not privy to counsel’s assessment of his client’s credibility.
Lara was aware that he faced up to six years in state prison if convicted as originally charged.
The benchmark for judging a claim of ineffective assistance is whether the attorney’s conduct “so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result.” (Strickland, supra, 466 U.S. at p. 686.) The reasonableness of counsel’s conduct must be judged on “the facts of the particular case, viewed as of the time of counsel’s conduct.” (Id. at p. 690.) As the Supreme Court has observed: “[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt?... Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.” (McMann v. Richardson (1970) 397 U.S. 759, 769–770.)
Lara argues that Munoz should have conducted further investigation of Lara’s purported exculpatory evidence, but in considering claims of ineffective assistance of counsel, “ ‘[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.’ [Citation.]” (Burger v. Kemp (1987) 483 U.S. 776, 794.) “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” (Strickland, supra, 466 U.S. at pp. 690–691.)
“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (Strickland, supra, 466 U.S. at p. 688.) Lara fails to meet his burden to show that the advice he received from Munoz was uninformed or erroneous, much less that it fell below an objective standard of reasonableness.
As to his claim that Munoz was incompetent in failing to seek reduction of the felony charge to a misdemeanor under section 17, subdivision (b), the record again fails to affirmatively establish that counsel could not have reasonably concluded that, in light of the “strike” prior charged against Lara, such a motion would have been unlikely to succeed. More significantly, Lara fails to meet his burden to show that the motion would have been successful if made. (People v. Mattson (1990) 50 Cal.3d 826, 876.) Failure to do so is fatal to his claim.
Concannon’s Representation of Lara
Lara faults Concannon for failing to adequately conduct his own investigation of the purported exculpatory evidence, and failing to present evidence of, and to argue, Munoz’s incompetence. Lara hypothesizes alternative arguments that could have been made in support of the motion, and suggests that Concannon should have called Munoz as a witness at the hearing on the motion to withdraw the plea since he had already been subpoenaed by the prosecution.
Since the record fails to demonstrate incompetence of attorney Munoz, we find it difficult to see how Concannon can be deemed ineffective for failing to pursue a claim unsuccessful here, and no more likely to have succeeded in the trial court. As to the decision not to call Munoz to testify at the hearing, Munoz’s subsequent declaration clearly evidences that he would not have supported Lara’s argument that his plea was involuntary, and would have instead undercut the strategy Concannon elected to pursue. Concannon could have further reasonably concluded that the risks attendant to waiver of attorney-client privilege by calling Munoz significantly outweighed any potential benefit in doing so.
Lara has not overcome the strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Strickland, supra, 466 U.S. at 690.) “ ‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ ” Burger v. Kemp, supra, 483 U.S. at p. 789 [quoting Strickland, supra, at p. 689].) From that perspective, we find no basis to determine that Lara received ineffective assistance of counsel in the trial court.
III. Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.