Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04905345-5. Gary D. Hoff, Judge.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Pursuant to a plea agreement, appellant Joseph David Ramirez pled to two counts of continuous sexual abuse of a child under 14 years of age. He moved to set aside his guilty plea and the plea agreement, which the trial court denied. He contends the trial court erred in denying his motion to set aside his guilty plea because defense counsel had a conflict of interest at the time the plea agreement was negotiated. Ramirez also argues his motion to set aside the plea should have been granted because he was not informed of a direct consequence of his plea, namely, lifetime registration as a sex offender. Ramirez further claims the trial court erred in allowing defense counsel to testify at the hearing on the motion to set aside the plea agreement. Lastly, Ramirez contends the trial court abused its discretion in denying probation and sentencing him to a total term of 16 years. We are not persuaded by his arguments and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Because Ramirez pled to the offenses, the facts are taken from the probation report. The two victims, who are sisters, were in their midteens when they informed their mother that Ramirez had been molesting them for several years. Ramirez began molesting the younger victim when she was in the first grade. The older victim is developmentally disabled and could not remember when the molestations began.
Ramirez would touch their vaginas, buttocks, and breasts and repeatedly tried to get the older victim to touch his penis. He digitally penetrated both victims. Ramirez frequently took off his clothes in front of the victims. On one occasion, Ramirez climbed on top of the older victim and tried to spread her legs. On another occasion, he rubbed her foot with his penis.
The younger victim learned in the summer of 2003 that Ramirez also was molesting her older sister. The younger victim threatened to call the police unless Ramirez stopped.
In March 2004, the police set up a pretextual phone call from the younger victim to Ramirez, in which she said she wanted to talk about what he had been doing to her. Ramirez agreed to go to counseling with her. When the police contacted Ramirez, he denied touching anyone inappropriately.
On August 13, 2004, a felony complaint was filed charging Ramirez with two counts of violating Penal Code section 288.5, continuous sexual abuse of a child under the age of 14 years. On August 23, 2004, Ramirez entered a plea of not guilty. The prosecution was represented by Deputy District Attorney Lorrie Anthony. Ramirez remained free on bond pending trial.
All further statutory references are to the Penal Code unless otherwise specified.
At the preliminary hearing on September 3, 2004, Deputy District Attorney Jeff Bird appeared for the prosecution. The hearing was continued to September 23, at which time Anthony again appeared for the prosecution. Over the next two years, the preliminary hearing was rescheduled numerous times and a bail reduction hearing was held. The prosecution was represented by Anthony and Deputy District Attorneys Stephen Wright, Michael Frye, Jeffrey Hammerschmidt, and Ty Murphy. Bird appeared specially for Anthony at a continuance heard on June 23, 2005
The preliminary hearing finally commenced on July 21, 2006. The prosecution was represented by Murphy and Attorney Stephen Quade represented Ramirez. At the conclusion of the hearing, Ramirez was bound over for trial.
On July 31, 2006, an information was filed alleging two felony violations of section 288.5. The trial was continued several times between September 1, 2006, and January 10, 2008. Each time the prosecution was represented by Murphy and Ramirez was represented by Quade.
On January 10, 2008, Attorney Scott Kinney appeared on behalf of Ramirez. Kinney represented Ramirez at several more continuances. In May, June, and July of 2008, Ramirez was represented by Attorneys L. Arellano, Robert Dulce, and R. Torres.
On August 13, 2008, Public Defender Kathy Marousek first appeared on behalf of Ramirez. Marousek continued to represent Ramirez for the next several court appearances. At a November 20, 2008, hearing, the trial court noted that there had been discussions in chambers with counsel regarding scheduling issues. The trial court then stated, “the People have conveyed an offer which I believe the defendant has accepted and a change of plea form has been provided to the court.”
Also at the November 20, 2008, hearing, the trial court noted that in September 2004 Bird had made a special appearance on behalf of the prosecutor assigned to the case, that Bird and Marousek were married, and that Marousek previously had been with the district attorney’s office. The trial court asked Ramirez if he had “been advised of that, ” to which Ramirez responded, “Yes.”
The trial court then asked Marousek if she had received any information, either in her prior capacity as a deputy district attorney or as a result of her relationship with Bird, that “disqualifies you in this particular case” or whether Marousek believed she might “have any conflict.” Marousek answered, “No, ” and added that she had no idea her husband had made any appearance in the case until the matter had been assigned to Judge Hoff and “you [the trial court] went through the file, the court file.”
The trial court asked Ramirez if he was agreeable, in light of these facts, to having Marousek represent him. Ramirez responded, “Yes.” The trial court stated, “It would not appear to the court there would be any conflict based upon no privileged communications or other disqualifying matters that the court is aware of.”
At this point, the trial court proceeded to discuss the plea bargain. The trial court noted that the plea bargain offered by the prosecution provided for a guilty plea on the two counts, a possible sentence of 12 years imprisonment on each count, to be served consecutively, for a total of up to 24 years in prison, and that Ramirez register as a sex offender pursuant to section 290. Ramirez acknowledged that he had gone over the change of plea form with Marousek, had no questions about his rights or consequences, and understood he would have to register as a sex offender.
Ramirez then waived his constitutional rights. Ramirez acknowledged he had not been threatened or coerced into entering into the plea agreement. Ramirez also acknowledged he understood that a favorable section 288.1 report might, but not necessarily, result in probation.
Ramirez then pled guilty to the two felony counts of violating section 288.5. The trial court accepted the guilty plea, vacated the trial date, and ordered a referral for a section 288.1 examination. Sentencing was set for January 13, 2009.
At the January 13, 2009, hearing, Attorney Julius Cruz of Sawl & Netzer said he was substituting in for Marousek. Ramirez stated he agreed with the substitution of attorneys. The trial court granted the substitution and Cruz announced he wished to make a motion to withdraw the guilty plea. Cruz acknowledged that Ramirez had failed to show for the section 288.1 evaluation, claiming Ramirez “inadvertently” lost the date of the appointment. Cruz stated Ramirez still was willing to undergo a section 288.1 evaluation. The trial court continued the matter to January 27, 2009, for a hearing on the motion to withdraw the guilty plea and ordered Ramirez, who had not been in custody, be taken into custody.
During the January 27, 2009, hearing on the motion to withdraw the guilty plea, Marousek testified that she had spent approximately 45 minutes going over the plea agreement form with Ramirez on the day the trial court accepted the guilty plea. Marousek specifically remembered explaining to Ramirez that the section 290 registration was a lifetime registration requirement. She remembered telling him registration was “a pain in the ass. You have to do it every year for the rest of your life.”
Marousek also testified that after Ramirez’s guilty plea had been accepted by the trial court, Ramirez told her “maybe I made a mistake.” Marousek stated she told Ramirez if he really had made a mistake, he could get another attorney appointed and explore withdrawing his guilty plea. Ramirez did not explain what he meant by a “mistake.”
Following argument, the motion to withdraw the guilty plea was denied. The next hearing was scheduled for February 24, 2009. At that hearing, Attorney Douglas Foster was substituted in as counsel for Ramirez. The trial court also appointed another doctor to conduct a section 288.1 examination.
At the April 27, 2009, sentencing, the trial court denied Ramirez’s second motion to withdraw his plea. The trial court then proceeded to deny probation and impose a sentence of 12 years in prison for count 1 and four years for count 2, to run consecutively, for a total of 16 years in prison.
DISCUSSION
Ramirez raises three main issues. First, Ramirez contends the motion to withdraw his guilty plea should have been granted because Marousek had a conflict of interest that was not waived. Second, Ramirez contends his motion to withdraw his plea should have been granted because he did not voluntarily and knowingly waive his constitutional rights. Third, the trial court abused its discretion in denying probation.
I. Motion to Withdraw Guilty Plea
On January 13, 2009, Ramirez filed a motion in the trial court seeking to withdraw his guilty plea on the basis his Boykin-Tahl-Bunnell rights had been violated. Ramirez argued that the trial court’s failure to advise him on the record of the lifetime requirement to register as a sex offender was legal error that warranted withdrawal of his guilty plea. His declaration filed in support of this motion stated that prior to pleading guilty “I was not informed of the lifetime obligation under the sexual registration requirement” of section 290. Ramirez further stated that had he been so informed, he would not have pled guilty.
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl); Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell).
Ramirez pled guilty as part of a negotiated plea agreement. The California Supreme Court in People v. Walker (1991) 54 Cal.3d 1013, 1020 (Walker) set forth a two-prong approach to analyzing claims of plea bargain violations. First, did the trial court properly advise the defendant concerning the plea consequences. A defendant must be admonished of and waive his constitutional rights (Boykin, supra, 395 U.S. at p. 243; Tahl, supra, 1 Cal.3d at p. 130) and, additionally, must be advised of the direct consequences of the plea (Bunnell, supra, 13 Cal.3d at p. 605). Second, did the parties adhere to the terms of the negotiated plea bargain. (Walker, at p. 1020.) When the state has induced a guilty plea pursuant to a plea bargain, it must keep its word and abide by the terms of the agreement. (In re Moser (1993) 6 Cal.4th 342, 351 [parties must adhere to the terms of the plea].)
An admission based on an uninformed waiver of rights as a result of the trial court’s failure to advise a defendant fully concerning the consequences of an admission (in contrast to the failure to advise of a constitutional right) is set aside only if the error is prejudicial to the accused. (Walker, supra, 54 Cal.3d at p. 1023.) A showing of prejudice requires a demonstration that it is reasonably probable the defendant would not have entered his plea if he had been told about the consequences.
Section 1018 permits a defendant to withdraw a plea of guilty, at any time before entry of judgment, upon a showing of good cause. The granting or denial of a motion to withdraw a guilty plea “is within the discretion of the trial court after a consideration of all the factors necessary to bring about a just result.” (People v. Waters (1975) 52 Cal.App.3d 323, 328 (Waters).) A plea of guilty may be withdrawn if based on mistake, inadvertence, or ignorance; the facts of such grounds must be established by clear and convincing evidence. The decision of the trial court will not be disturbed unless an abuse of discretion clearly is shown. (Ibid.)
A. Conflict of Interest
Ramirez contends that Marousek had a conflict of interest at the time he entered into the plea agreement and therefore the plea agreement was invalid. We note that he did not assert this ground for withdrawal of his plea in either of the two motions he filed in the trial court. Although issues not raised in the first instance in the trial court generally are forfeited on appeal (People v. Seijas (2005) 36 Cal.4th 291, 302), we decline to consider this issue forfeited. If Marousek had a conflict of interest that adversely affected her performance, Ramirez was deprived of a substantial right -- the effective assistance of counsel. (People v. Pennington (1991) 228 Cal.App.3d 959, 964-965.)
Ramirez claims a conflict of interest existed because Marousek had been employed in the district attorney’s office in 2004 when his case first began and had spent time in the sexual assault unit, although there is no indication as to whether she was in that unit in 2004. In August 2004, Marousek joined the public defender’s office, while her husband, Bird, remained in the district attorney’s office and made two appearances in this case, the last one occurring in June 2005. Ramirez contends that because Marousek “switched sides” she had a conflict of interest. He also argues he did not waive the conflict. We disagree. Ramirez has failed to show that a conflict existed or that it adversely affected counsel’s performance.
Standard of review
The right to effective assistance of counsel includes the right to representation free from any conflict of interest that impairs counsel’s efforts on behalf of his or her client. (Mickens v. Taylor (2002) 535 U.S. 162, 166, 171 (Mickens); see Wood v. Georgia (1981) 450 U.S. 261, 271 (Wood); People v. Rundle (2008) 43 Cal.4th 76, 168.) When a trial court knows or should know that defense counsel has a possible conflict of interest with a client, it must inquire into the matter (People v. Bonin (1989) 47 Cal.3d 808, 836 (Bonin); Wood, at p. 272; see Holloway v. Arkansas (1978) 435 U.S. 475, 484) and act in response to what the inquiry uncovers (Bonin, at p. 836).
The duty to inquire is not triggered merely because of “a vague, unspecified possibility of conflict.” (Mickens, supra, 535 U.S. at p. 169.) Although the trial court is required to perform some inquiry once it knows or reasonably should know of a particular conflict of interest, the trial court may decline to pursue the matter if, in its view, the potential for conflict is too slight. (See Bonin, supra, 47 Cal.3d at p. 837.)
The courts “necessarily rely in large measure upon the good faith and good judgment” of criminal defense counsel who are “‘“in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.”’ [Citations.]” (Cuyler v. Sullivan (1980) 446 U.S. 335, 347 (Cuyler).) The trial court may place substantial weight on counsel’s assertion that no conflict of interest exists. (People v. Lawley (2002) 27 Cal.4th 102, 146 (Lawley).)
A trial court’s failure to delve into a potential conflict of interest or to respond adequately to the results of an otherwise adequate inquiry is reversible error only if the defendant shows “that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.” (Bonin, supra, 47 Cal.3d at pp. 837-838.) There must be a conflict of interest that affected counsel’s performance, as opposed to “a mere theoretical division of loyalties.” (Mickens, supra, 535 U.S. at p. 171.) The standard set forth in Mickens is the applicable standard for analyzing conflict of interest claims under the federal or state Constitution. (People v. Doolin (2009) 45 Cal.4th 390, 421.)
The right to conflict-free counsel may be waived by a defendant. (Cuyler, supra, 446 U.S. at pp. 346-347.) The waiver must be knowing and done with sufficient awareness of the relevant circumstances. (People v. Mroczko (1983) 35 Cal.3d 86, 109-110 (Mroczko).)
Analysis
Here, the record demonstrates that Ramirez was informed that Marousek previously had worked in the district attorney’s office and that her husband, Bird, was in the district attorney’s office and had made appearances in the case. Ramirez acknowledged being advised of this information, apparently by Marousek, and then by the trial court. It is clear the trial court was aware of the potential conflict of interest.
The trial court then inquired of Marousek whether she had received any information, either because of her connection to Bird or the district attorney’s office, that created a conflict or that would disqualify her from the case. Marousek responded by stating, “No, ” and offering that she had not been aware that Bird had made any appearances in the case until it was brought to her attention by the trial court. This fulfilled the trial court’s duty to inquire about the possibility of any conflict. The trial court is not required to make any further inquiries when the possibility of a conflict is slight. (Bonin, supra, 47 Cal.3d at p. 837.)
In Bonin, supra, 47 Cal.3d 808, the California Supreme Court explained that a trial court has the duty to inquire into counsel’s potential conflict of interest, but “[a]fter the trial court has fulfilled its obligation to inquire into the possibility of a conflict of interest and to act in response to what its inquiry discovers, the defendant may choose the course he wishes to take. If the court has found that a conflict of interest is at least possible, the defendant may, of course, decline or discharge conflicted counsel. But he may also choose not to do so.” (Id. at p. 837.) Commenting on Bonin, the appellate court in People v. Burrows (1990) 220 Cal.App.3d 116, 125 said: “California makes a defendant the master of his fate and allows him to proceed uninterrupted, with the exceptions of flagrant circumstances of attorney misconduct or incompetence [citation], with counsel of his choice if the parties involved in the conflict properly waive any potential or actual conflicts.”
The trial court asked Ramirez whether he wished to continue being represented by Marousek, and Ramirez stated affirmatively that he did. Ramirez now seems to contend that his waiver of the conflict was uninformed. Not true.
After informing Ramirez of the potential for a conflict and inquiring of Marousek whether there was an actual conflict, the trial court asked Ramirez whether he wished to continue to have Marousek represent him. Ramirez responded affirmatively. Ramirez was informed of the relevant factual circumstances that might have created a conflict for Marousek before he was asked if he wished to waive any potential conflict. Ramirez chose to continue having Marousek represent him after being informed of those circumstances. (Mroczko, supra, 35 Cal.3d at pp. 109-110.)
Ramirez also seems to contend that his waiver of any possible conflict was influenced by the trial court’s comment that no conflict existed. It was not until after Ramirez indicated that he wished to continue having Marousek represent him, however, that the trial court indicated it perceived no conflict existed. The trial court’s perception of the relevant facts, therefore, could not have influenced Ramirez’s decision.
Even if Ramirez now contends his waiver of any potential conflict was not knowing and voluntary, he has failed to establish that any conflict existed that affected counsel’s performance. At most, the record shows a vague possibility of a conflict, a possibility that the trial court inquired into and that Marousek affirmatively denied existed. The trial court may place substantial weight on counsel’s assertion that no conflict exists. (Lawley, supra, 27 Cal.4th at p. 146.) Marousek’s statement that no disqualifying information had been received by her appears to be supported by the record. The record establishes that Bird’s appearances were made at hearings where continuances were granted and Marousek apparently was not involved with Ramirez’s case when she was at the district attorney’s office.
It is not clear exactly what basis Ramirez is alleging for his claim of a conflict. Marousek had left the district attorney’s office four years prior to the time she undertook the representation of Ramirez. Her husband had made two cursory procedural appearances on behalf of the prosecution, the last of which had been more than three years before the plea. Ramirez alleges no other facts to support his claim. In his reply brief he argues that Marousek’s testimony at the hearing on the motion was evidence of affected performance by Marousek. This testimony occurred long after the plea and provides no support for his argument.
The authorities Ramirez relies on concerning concurring or successive representation are not helpful to him. They all deal with requests by former clients to remove counsel from representing adverse parties. An analogous situation here would be if the district attorney had filed a motion to have Marousek removed from the case. The basis of the request would be that Marousek learned of confidential information while with the district attorney’s office, which she would use against them. Here, anything Marousek learned would be to Ramirez’s benefit.
As there is no evidence that Marousek imparted any confidential information to the prosecution, and any information she would have received from the prosecution would have benefited Ramirez, the only remaining bases for a conflict he can argue is a blanket ban on a spouse representing a defendant in a criminal case when the other spouse is employed by the district attorney’s office or that a former prosecutor can never represent a criminal defendant. Ramirez has cited no authority to support either of these theories and our research has not uncovered any. We will not make such a holding here.
Thus, Ramirez has failed to establish affirmatively that a conflict existed, that any conflict affected Marousek’s performance, or that the trial court made an inadequate inquiry. His contention fails. (Mickens, supra, 535 U.S. at p. 171; Bonin, supra, 47 Cal.3d at pp. 837-838.)
B. Consequences of Plea
Ramirez raises two additional contentions with respect to his plea agreement and the motions to set aside his guilty plea. The first is that he was not informed fully of the consequences of his plea. In a related argument, he contends it was error for the trial court to allow Marousek to testify that he was fully informed of the consequences.
Although Ramirez claims he was not fully informed of the lifetime requirement to register as a sex offender before he pled guilty, he did not seek to enforce the plea agreement without a registration requirement, presumably because the registration requirement is not a proper subject of plea negotiations when registration is mandated by section 290. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Instead, Ramirez sought to withdraw his guilty plea and effectively set aside the plea agreement.
Factual summary
At the time his plea of guilty was entered pursuant to the plea agreement, the following exchange occurred:
“THE COURT: And each of these offenses would require registration as a sexual offender pursuant to Penal Code section 290. Do you understand that’s a possible consequence?
“MR. RAMIREZ: Yes.”
During the change of plea hearing, Ramirez acknowledged that he had thoroughly discussed the plea agreement with counsel and understood the consequences of his plea. Ramirez also acknowledged that he had executed a plea form that specified section 290 registration as a consequence. The trial court did not insert the word “lifetime” into the advisement and the plea form did not include the term “lifetime.”
On January 13, 2009, Ramirez informed the trial court that he would seek to withdraw his plea on the basis he had not been informed of the lifetime registration requirement. The prosecutor announced that he would call Marousek to testify to rebut Ramirez’s claim that he had not been told he had a lifetime registration requirement. Ramirez did not raise any objection to Marousek testifying.
On January 16, 2009, the prosecution filed an opposition to Ramirez’s motion, including a declaration from Marousek. Ramirez never filed any objection to the admissibility of Marousek’s declaration.
At the hearing on the motion to withdraw the plea held on January 27, 2009, defense counsel objected to Marousek testifying, claiming any exchange was subject to attorney-client privilege. The trial court overruled the objection, stating that the claim of privilege had been waived by the filing of the motion. Marousek testified she specifically remembered advising Ramirez of the lifetime registration requirement.
In denying the motion to withdraw the plea, the trial court acknowledged there had been a failure on the part of the trial court to use the word “lifetime” in advising of the registration requirement, although there had been an advisement of the registration requirement. The trial court found that Ramirez “was aware of the registration, and that the court finds it sufficient notice and a sufficient knowing, intelligent and voluntary waiver thereafter knowing that consequence.”
In the second motion to withdraw the guilty plea filed March 23, 2009, Ramirez again asserted that his Boykin-Tahl-Bunnell rights were violated in that there was no advisement on the record of the lifetime registration requirement. He also asserted that Marousek rendered ineffective assistance of counsel.
Analysis
Lifetime registration as a sex offender is required of persons convicted of specified offenses in section 290, subdivision (c). Violation of section 288.5, to which Ramirez pled, is one of the enumerated offenses requiring lifetime registration. It is undisputed that the trial court never mentioned, on the record, that the sex offender registration requirement was a lifetime requirement.
We view Ramirez’s position on this issue as twofold. First, the notification of the lifetime requirement of sexual offender registration must be shown on the record without resort to extrinsic evidence. Second, even if a trial court could look to other evidence, the trial court erred in allowing Marousek to testify; thus, there was no competent evidence to refute his claim that he was not notified of the lifetime registration requirement. The People contend the trial court properly accepted extrinsic evidence and Marousek’s testimony properly was admitted into evidence. The People are correct.
1. Extrinsic evidence
Whenever a defendant pleads guilty, whether or not the plea is part of a plea bargain, he or she must be advised of and waive his or her constitutional rights. (Boykin, supra, 395 U.S. at p. 243; Tahl, supra, 1 Cal.3d at p. 130.) In addition, and pertinent to this case, the defendant must be advised of the direct consequences of the plea. (Bunnell, supra, 13 Cal.3d at p. 605.) Lifetime registration as a sex offender is a direct consequence of a plea to an enumerated offense set forth in section 290. (Bunnell, at p. 605.)
Extrinsic evidence is admissible to determine whether a defendant has been properly advised of his or her constitutional rights. In Bradshaw v. Stumpf (2005) 545 U.S. 175 (Bradshaw), a defendant argued that his guilty plea was invalid because he was unaware of all the elements of the charge to which he pled. The record contained a recitation by defense counsel that they had explained the charges and the defendant’s affirmative statement that he had discussed the charges with counsel. Under these circumstances, the plea was valid. The United States Supreme Court stated, “we have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel. [Citation.]” (Id. at p. 183.)
In People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481 (Zaidi), the appellate court held that a defendant must be informed that registration as a sex offender is a lifelong requirement. The Zaidi court concluded that it is insufficient for a trial court to advise a defendant that he or she will be subject to registration pursuant to section 290; the advisement must specify that registration is a lifetime requirement. (Zaidi, at p. 1481.)
In Zaidi, the appellate court also noted, however, that no declaration or other direct evidence had been submitted to the trial court indicating the defendant had been a participant in, or present at, a discussion of the lifetime nature of the sex offender registration requirement, which evidence would refute the defendant’s assertion that he had not been aware prior to entry of his plea of the lifetime nature of the registration requirement. (Zaidi, supra, 147 Cal.App.4th at p. 1489.) It appears the appellate court in Zaidi contemplated that extrinsic evidence, such as declarations, could be submitted and considered to refute a defendant’s claim that he or she was unaware of a lifetime sexual offender registration consequence of a plea. (Ibid.)
In Waters, supra, 52 Cal.App.3d at page 329, the defendant claimed he had a mistaken belief about his appeal rights after entering a guilty plea and the requirement to obtain a certificate of probable cause if he wished to appeal. The trial court accepted testimony from the attorney who had represented the defendant at the time of entry of the plea regarding whether there had been any discussion of the defendant’s appeal rights prior to entry of the plea and the substance of those discussions. (Ibid.)
In the trial court, Ramirez relied in part on the case of In re Birch (1973) 10 Cal.3d 314 to support his position. Birch, however, states that in the absence of counsel for the defense, the trial court has the responsibility to make sure the defendant is fully informed regarding any registration requirements as a consequence of a plea. (Id. at p. 322.) Ramirez was represented by counsel.
Recent cases have indicated it is the totality of the circumstances that must be examined in determining whether a defendant’s waiver of rights is knowing and voluntary. (People v. Mosby (2004) 33 Cal.4th 353, 365 [addressing admission to prior convictions].) This requires an appellate court to go “beyond the courtroom colloquy to assess a claim” of error. (Id. at p. 361.) Ramirez apparently agrees that the totality of the circumstances is to be considered when determining whether a plea is intelligent and voluntary.
Because Ramirez pled guilty as part of a plea agreement, the trial court’s ability to admit extrinsic evidence is even more clear. A plea agreement is a form of contract, interpreted according to general contract principles. (People v. Feyrer (2010) 48 Cal.4th 426, 437 (Feyrer).) In interpreting a plea agreement, courts look to “‘“objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]”’ [Citation.]” (Ibid.)
Any ambiguity in the terms of a plea agreement is resolved by looking to extrinsic evidence. (People v. Rabanales (2008) 168 Cal.App.4th 494, 506-507.) It cannot reasonably be disputed that there is an ambiguity as to the meaning of the language in the plea agreement regarding section 290 registration. Ramirez’s motions in the trial court and his position in this appeal are and have been essentially that this language was ambiguous or unclear and that he did not understand it was a lifetime requirement.
Clearly, a trial court may rely on defense counsel’s assurances and representations that a defendant’s constitutional rights have been explained to him or her and need only receive on the record an assurance from counsel, and an affirmation by the defendant, that this has been done. (Bradshaw, supra, 545 U.S. at p. 183.) While it is preferable that a trial court specifically advise a defendant on the record that a registration requirement is a lifetime requirement, we view Zaidi as acknowledging that extrinsic evidence, in the form of a declaration, may be used to clarify the extent of information imparted to a defendant prior to acceptance of a plea. (Zaidi, supra, 147 Cal.App.4th at p. 1489.) Interpreting the plea agreement, pursuant to which Ramirez entered his guilty pleas, allows for admission of extrinsic evidence. (Feyrer, supra, 48 Cal.4th at p. 437.)
The trial court properly went beyond the courtroom colloquy to assess whether Ramirez had been informed fully of the direct consequences of his plea.
2. Waiver of attorney-client privilege
Ramirez claims that it was error to allow Marousek to testify because her testimony violated attorney-client privilege and his federal constitutional rights. Ramirez never raised any constitutional grounds as a basis for objecting to Marousek’s testimony in the trial court. Therefore, he cannot assert any such claim on appeal. (People v. Earp (1999) 20 Cal.4th 826, 893.)
Ramirez’s declaration in support of his motion stated that prior to pleading guilty he was not informed of the lifetime obligation under the sexual registration requirement of section 290. Marousek’s declaration was filed in opposition to Ramirez’s motion, affirmatively stating that before Ramirez entered his guilty plea Marousek had advised Ramirez of the lifetime nature of the registration requirement and that he might be subject to classification as a sexually violent offender.
Ramirez never objected to the admissibility of Marousek’s declaration. Failing to object to the disclosures in Marousek’s declaration constitutes a waiver of any attorney-client privilege pertaining to the subject matter of the declaration. (Evid. Code, § 912; People v. Barnett (1998) 17 Cal.4th 1044, 1124.) Furthermore, because no objection to this declaration was raised in the trial court, none can be raised on appeal, and the declaration is admissible evidence that Ramirez was notified of the lifetime registration requirement before entering his plea. (Evid. Code, § 353; People v. Bury (1996) 41 Cal.App.4th 1194, 1201.)
When the prosecutor sought to have Marousek testify at the hearing on the motion to withdraw the plea and rebut this statement, Ramirez objected on the basis of attorney-client privilege. The trial court overruled the objection, finding that Ramirez had waived the privilege by bringing the motion to withdraw his plea.
The trial court properly rejected Ramirez’s claim of attorney-client privilege, and we reject it here. Ramirez waived the attorney-client privilege by failing to object to Marousek’s declaration. Ramirez also waived the privilege by bringing the motion to set aside the plea agreement and withdraw his plea.
Ramirez was seeking to set aside a plea agreement, an agreement signed by both his attorney and him, and withdraw his guilty plea. Marousek’s signature on the change of plea form constituted verification that she had discussed the form with Ramirez and “explained the consequences of this plea.” Ramirez affirmatively represented to the trial court, at the time he entered the guilty plea, that he had gone over the form with his attorney and had no questions about the consequences of his plea.
When Ramirez claimed he had not been informed prior to entry of his guilty plea that he would be subject to a lifetime registration requirement, he essentially was asserting ineffective assistance of counsel by Marousek. When counsel is alleged to have rendered ineffective assistance, counsel generally must be asked for an explanation. (Evid. Code, § 958; People v. Pope (1979) 23 Cal.3d 412, 426; In re Gray (1981) 123 Cal.App.3d 614, 616.)
Further, as we noted ante, Ramirez’s motions to withdraw his plea essentially were motions seeking to also set aside the plea agreement. The circumstances under which the plea agreement was negotiated and entered into and the meaning of language used in the plea agreement are proper matters for admission of extrinsic evidence to be used in clarifying the terms of a plea agreement. (Feyrer, supra, 48 Cal.4th at p. 437.) Marousek testified to the circumstances under which the plea was negotiated, the meaning of the language “290 Registration, ” handwritten in the plea agreement, which Marousek had written, and the 45-minute discussion about the specifics of the plea agreement and the meaning of each of its provisions.
The trial court did not err in admitting Marousek’s testimony.
C. No Good Cause Shown
When the defendant is represented by counsel, whether to allow the defendant to withdraw a guilty or no contest plea is left to the sound discretion of the trial court. (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496 (Shaw).) The decision to set aside a plea resulting from a bargain should not be made lightly. (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
It is the defendant’s burden to establish good cause by clear and convincing evidence. (People v. Wharton (1991) 53 Cal.3d 522, 585.) On appeal, the trial court’s decision will be upheld unless there is a clear showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. (Shaw, supra, 64 Cal.App.4th at p. 496.)
Here, the trial court did not abuse its discretion when it found that Ramirez failed to demonstrate good cause for withdrawal of his guilty plea. As discussed in part B., ante, the trial court properly admitted extrinsic evidence regarding the terms of the plea agreement and the information imparted to Ramirez before he signed the plea agreement and entered his guilty plea. The evidence established that at the time Ramirez entered his plea, he had been informed of the terms of the plea agreement, understood those terms, and desired to enter the plea.
Even though Ramirez claims he never was told sex offender registration would be a lifetime requirement, he never set forth what his understanding was of the section 290 registration language. The trial court, upon accepting extrinsic or parol evidence, is required to make credibility determinations. (People v. Paredes (2008) 160 Cal.App.4th 496, 507.) The trial court reasonably could believe Marousek’s testimony that she explained the lifetime nature of the section 290 registration requirement to Ramirez when she hand wrote it on the change of plea form, at the same time she explained possible sexually violent predator status and hand wrote that on the plea form as well, and then had Ramirez initial and sign the form.
Furthermore, imposition of the lifetime sex offender registration requirement did not violate Ramirez’s plea bargain. Registration is not a permissible subject of plea agreement negotiation when registration is a statutorily mandated element of punishment for the underlying offense. (People v. McClellan (1993) 6 Cal.4th 367, 380.) Therefore, a defendant’s plea bargain is not violated by imposition of statutorily mandated registration, even if the trial court erroneously fails to advise him of the requirement at the change of plea hearing. (Id. at pp. 379-381.)
It is abundantly clear that Ramirez’s declaration was crafted in an attempt to withdraw from the plea bargain after he suffered “buyer’s remorse.” Buyer’s remorse is insufficient to compel a court to permit withdrawal of a plea. (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
Ramirez failed to meet his burden of establishing good cause to withdraw the plea. The trial court, therefore, did not abuse its discretion in denying Ramirez’s motion to set aside his plea.
II. Sentencing
Ramirez contends the trial court abused its discretion when it sentenced him to a 16-year term instead of probation. The plea agreement signed by Ramirez provided that he could be sentenced to a maximum of 24 years in prison. The sentence, therefore, did not violate the plea agreement, and Ramirez is not alleging such. The plea agreement allowed Ramirez to avoid imposition of the upper term of 16 years for each count and thereby avoid a potential term of 32 years in prison.
Prior to imposing sentence, the trial court considered the probation report and the section 288.1 reports. The probation report found no mitigating factors and two aggravating factors. The probation report urged that probation be denied and that two consecutive 12-year prison terms be imposed. The two section 288.1 reports both suggested probation and treatment.
The trial court noted that Ramirez denied he had a problem, despite having admitted to details of the offenses. The trial court indicated it was rejecting probation because Ramirez did not appear to be amendable to treatment. One has to recognize a problem before accepting treatment. The trial court agreed with the probation department that Ramirez took advantage of a position of trust, an aggravating factor. The trial court disagreed with the probation department that the offenses had involved great violence or great bodily harm. The trial court then imposed sentence.
Ramirez claims the trial court sentenced him to prison because “Aside from the fact of pleading guilty, [he] maintained his innocence.” Ramirez seems to ignore that as part of his guilty plea he admitted guilt and admitted there was a factual basis for his guilty plea. The cases he cites to support his contention that the trial court abused its discretion in denying probation and imposing a prison term do not involve situations where a defendant pled guilty to the offense. They involve situations where the defendant maintained innocence throughout the proceedings, but was convicted by a jury.
A trial court has broad discretion in determining whether to grant or deny probation. (People v. Superior Court (Du)(1992) 5 Cal.App.4th 822, 825.) Ramirez bears the burden of showing an abuse of that discretion, and he has failed to meet his burden. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., POOCHIGIAN, J.