Opinion
F062101 Super. Ct. No. BF132651B
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL RUIZ, Defendant and Appellant.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
When determining whether to accept a defendant's guilty or no contest plea as part of a plea bargain, the trial court is required to advise the defendant of the direct consequences of his plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) Such consequences include any mandatory parole consequences of the plea. (In re Moser (1993) 6 Cal.4th 342, 352.) Despite the urgings of the Supreme Court that the significant elements of a plea bargain be covered in a change of plea form signed by the defendant, or that the court follow a "'script'" that includes such advisements (see People v. Crandell (2007) 40 Cal.4th 1301, 1310), the trial court here failed to advise defendant Gabriel Ruiz at the time of his change of plea that defendant would be subject to a term of parole when he completed his 19-year stipulated prison sentence. When defendant moved to withdraw his no contest plea prior to sentencing, he alleged that the court had failed to advise him of the maximum possible sentence and the parole consequences, but he did not allege he was prejudiced by the failure. In denying the motion, the court concluded defendant had been advised of the maximum term of imprisonment under the plea bargain, but the court did not address the failure to advise concerning parole consequences. The issue on this appeal is whether we should, as defendant requests, remand the matter for a new hearing on prejudice or should affirm the judgment on the basis that defendant failed to establish a prima facie entitlement to withdraw his plea. We conclude the second alternative is appropriate in this case.
FACTS AND PROCEDURAL HISTORY
On June 18, 2010, defendant, armed with a shotgun, attempted to rob Volodymyr Mykhaylov and Jacob Dijkstra on a Bakersfield Street. When defendant's accomplice agreed with defendant's suggestion that defendant shoot the men, Mykhaylov started to run. Defendant shot him, causing serious injury.
Defendant was charged with three felony counts and two misdemeanors. As to two of the felonies, attempted murder (count 1, Pen. Code, §§ 664, 187, subd. (a)) and attempted robbery (count 2, Pen. Code, §§ 664, 212.5, subd. (c)), the complaint alleged the offenses were serious felonies (Pen. Code, § 1192.7, subd. (c)) and that defendant had personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)). (The latter allegation, if proved, results in a consecutive sentence of 25 years to life.)
Under the terms of a plea bargain, defendant pled no contest to count 1 and admitted an enhancement pursuant to Penal Code section 12022.53, subdivision (b) (personal use of a firearm). Pursuant to the terms of the plea bargain, defendant was to receive the upper term of nine years for attempted murder and the prescribed consecutive term of 10 years for the gun-use enhancement. The remaining counts were dismissed on the condition the plea agreement remained in effect.
At the time set for sentencing, defendant appeared with the same attorney who represented him at the change of plea hearing. Defendant requested appointment of new counsel and informed the court he wished to withdraw his no contest plea. The court appointed the public defender's office to represent defendant and continued the case for presentation of the motion to withdraw the plea. After several more continuances and appointment of conflict counsel, defendant's new counsel filed a motion to withdraw the no contest plea. In points and authorities accompanying the notice of motion, counsel stated that the basis for the motion was that the "maximum punishment" section of the change of plea form was not filled out and that defendant was not informed of the parole consequences of his plea. The change of plea form was attached to the notice of motion, but no declaration of defendant was included. At the hearing on the motion, defense counsel said he had nothing further to present on the motion and submitted the matter on the documents previously filed. The court denied the motion, stating: "It was clear to the defendant that his plea was for a 19-year sentence. There was no confusion as to what the maximum sentence was, he knew he was going to receive a stipulated 19 years, because it was a stipulated plea bargain. There is no good cause to allow him to withdraw his plea and I'm going to deny the motion to withdraw plea." The court then turned to the matter of sentencing and pronounced judgment, including a 19-year prison sentence. Defendant appealed and the court granted defendant's request for certificate of probable cause.
DISCUSSION
It is clear from the reporter's transcript of the change of plea hearing that the court reviewed with defendant the waiver of rights form defendant signed, reviewed the stipulated sentence, and discussed with defendant that the admitted offense was a strike. It is equally clear that neither the change of plea form nor the court by oral admonition advised defendant, as required by the Supreme Court in In re Moser, supra, 6 Cal.4th at page 352, that he was required to serve a period on parole upon his release from prison. This was error. (Ibid.)
A defendant may be permitted to withdraw a guilty or no contest plea if, prior to the plea, he was not advised of the direct consequences of the plea. He is entitled to such relief, however, only if "the defendant establishes that he or she was prejudiced by the [failure to advise or] the misadvisement, i.e., that the defendant would not have entered the plea of guilty [or no contest] had the trial court given a proper advisement." (In re Moser, supra, 6 Cal.4th at p. 352.) Such relief may be sought by means of a motion pursuant to Penal Code section 1018, which states, in relevant part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." In the present case, defendant failed to allege, and failed to establish by declaration or other evidence, good cause for withdrawal of his no contest plea because he failed to assert that he would not have entered into the plea agreement if he had known he would be required to be on parole upon his release from prison.
Defendant asserts, in reliance on In re Moser, supra, 6 Cal.4th at page 352, that he is entitled, nevertheless, to have this case remanded to the trial court for a hearing on the issue of prejudice. In Moser, "the petition for writ of habeas corpus filed in the superior court did not specifically allege prejudice. In their return to the petition, however, the People failed to bring this omission to the superior court's attention, and thus the question of prejudice never was litigated or resolved at the trial court level." (Id. at pp. 352-353.) Under those circumstances, the court concluded that "the interests of justice would best be served by a remand of the matter to the superior court for a hearing and determination of the question whether petitioner was prejudiced by the trial court's misadvisement." (Id. at p. 353.)
Moser was decided in 1993. Not only was it the first Supreme Court opinion to hold that parole was a direct consequence of a guilty plea of which the defendant must be advised (see In re Moser, supra, 6 Cal.4th at pp. 351-352), but it also was the first Supreme Court opinion applying the prejudice requirement to withdrawal of a guilty plea in a habeas corpus proceeding under the then-recently adopted prejudice requirement of People v. Walker (1991) 54 Cal.3d 1013. (See In re Moser, supra, 6 Cal.4th at p. 352.) It was in this context that the court remanded the matter to give the petitioner an opportunity to establish the newly required prejudice.
People v. McClellan (1993) 6 Cal.4th 367, decided the same day as Moser, involved a more established advisement, namely, that a requirement for registration as a sex offender was a consequence of the guilty plea. (McClellan, supra, 6 Cal.4th at p. 376.) In McClellan, the defendant had not moved to withdraw his guilty plea and did not object to the imposition of the registration requirement at the sentencing hearing. Instead, he stated in his notice of appeal that, had he known of the requirement, he would not have pleaded guilty. (Id. at p. 378.) In those circumstances, the Supreme Court held that because the record of the trial court proceedings contained "no evidence (nor even an assertion) concerning the bearing of a registration requirement upon defendant's decision to plead guilty," the defendant had failed to meet his burden of establishing prejudice. (Ibid.) Accordingly, the court directed the Court of Appeal to affirm the judgment of the trial court. (Id. at p. 381.)
Nearly two decades after In re Moser, supra, 6 Cal.4th 342, it is to be expected that a defendant to whom the parole advisement was of critical importance would have asserted prejudice in his moving papers. (See People v. Zaidi (2007) 147 Cal.App.4th 1470, 1488-1489 [defendant's declaration filed in the trial court stated that if he had known of the required life-long sex offender registration requirement, he would have insisted on going to trial].) Yet defendant did not make such an assertion here.
Defendant's plea bargain involved dismissal of a mandatory consecutive sentence of 25 years to life on the Penal Code section 12022.53, subdivision (d) allegation, calling for a fixed term of 10 years under Penal Code section 12022.53, subdivision (b) instead. In light of the overwhelming evidence that defendant personally fired the shotgun, and that this shot caused great bodily injury to the victim, the plea bargain accepted by defendant was highly favorable to him. The record contains no declaration or statement by defendant that he would not have accepted the bargain if he had been advised by the court of the requirement for a term of parole. Accordingly, he has not established that the trial court prejudicially erred in denying his motion to withdraw from the plea bargain. In other words, there is no basis in the present record that would permit the trial court to find good cause for withdrawal of defendant's plea under Penal Code section 1018, so remand to the trial court would be an empty formality.
DISPOSITION
The judgment is affirmed.
Before Cornell, Acting P.J., Kane, J. and Detjen, J.