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People v. Fuentez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Mar 23, 2021
F078361 (Cal. Ct. App. Mar. 23, 2021)

Opinion

F078361

03-23-2021

THE PEOPLE, Plaintiff and Respondent, v. TORIVIO FUENTEZ III, Defendant and Appellant.

Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CM6662)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge. (Retired judge of the Kings County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

Before Detjen, Acting P.J., Franson, J. and Peña, J.

-ooOoo-

INTRODUCTION

Appellant Torivio Fuentez III appeals from the trial court's denial of his motion to withdraw his guilty plea. Fuentez contends his plea was not knowingly, intelligently, and voluntarily made because he was not advised by the court or his trial counsel that he was presumptively ineligible for probation. He further contends his trial counsel was incompetent for failing to file a motion under Penal Code section 1170.18 to reduce his prior felony convictions to misdemeanors, rendering the presumption of ineligibility inapplicable to his case. We affirm.

PROCEDURAL HISTORY

On December 21, 2017, the People filed a criminal complaint charging Fuentez with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1), count 1), and possession of ammunition and reloaded ammunition (§ 30305, subd. (a)(1), count 2). As to both counts, the complaint alleged Fuentez had previously been convicted of felony vehicle theft in violation of Vehicle Code section 10851, subdivision (a).

All undefined statutory citations are to the Penal Code unless otherwise indicated.

On May 15, 2018, Fuentez plead guilty to count 1. Fuentez's guilty plea was entered as an open plea, exposing him to a maximum sentence of three years in state prison. In view of his plea, the People dismissed count 2.

All dates occurred in the year 2018 unless otherwise stated.

An open plea, in contrast to a plea bargain, is "one under which the defendant is not offered any promises. [Citation.] In other words, the defendant 'plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.' " (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.)

On October 9th, Fuentez filed a motion to withdraw his guilty plea.

On October 19th, the People filed an opposition to the motion to withdraw the plea.

On October 26th, following oral argument, the trial court denied Fuentez's motion. The trial court sentenced Fuentez to a term of two years in state prison and imposed various fines and fees.

Fuentez filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause.

FACTUAL HISTORY

Underlying Incident

The following facts are taken from the probation officer's report filed June 5, 2018.

On November 7, 2017, at approximately 2:00 p.m., Kings County sheriff's deputies were dispatched to Armona in response to a report that a firearm had been discharged. Upon arrival, one of the deputies contacted Fuentez, who was on an EMS stretcher. The deputy observed what appeared to be an entry and exit wound to Fuentez's right thigh and right bicep. Fuentez told the deputy he was attempting to remove a bullet from the barrel of a firearm when the cartridge " 'somehow went off.' " Fuentez described the firearm as a small double-barreled derringer-style handgun. The deputy located the barrel of the handgun in the middle of the garage, with one bullet inside of the barrel. He also located a spent bullet on the ground near the barrel, along with other damaged pieces of the firearm.

Fuentez was on probation at the time of the incident, and he had suffered multiple prior felony convictions, including: three convictions for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) occurring in 2004 and 2014; and vehicle theft (Veh. Code, § 10851, subd. (a)) occurring in 2012.

Court Proceedings

On May 15th, the parties appeared for pretrial conference and setting of the preliminary hearing. At the hearing, they advised the court they had reached a resolution in the case. Fuentez intended to enter an open plea of guilty to count 1. Count 2 would be dismissed in view of his plea.

Prior to the entry of his plea, the court advised Fuentez as follows:

"The agreement here is that you'll be sentenced only on the one count, but you are exposed to -- this is an open sentence, meaning the judge at the time of sentencing will decide what to order; whether you'll be placed on probation or ordered to serve a penal commitment, a felony commitment which could be, I think it's -- is it a three-year maximum?"

Defense counsel replied affirmatively, explaining the sentencing triad for count 1 was 16 months, two years, and three years. The prosecutor explained Fuentez's total maximum exposure would be an aggregate prison term of three years and eight months. Following an advisement, the court found Fuentez had knowingly, intelligently, and voluntarily waived his rights.

Fuentez entered a guilty plea to possession of a firearm by a felon in violation of section 29800, subdivision (a)(1). The court advised Fuentez to report to the Kings County Probation Department. The court stated, "[t]hey'll set you up with an interview and you can make an application for probation."

On September 10th, following interim proceedings, Fuentez retained new counsel to file a motion to withdraw his guilty plea.

On October 26th, the parties appeared for sentencing and consideration of Fuentez's motion to withdraw his plea. Defense counsel argued Fuentez's plea was not voluntarily, intelligently, or knowingly made because Fuentez was not advised by the court or his former trial counsel that he was presumptively ineligible for a grant of probation based upon Fuentez's prior felony convictions. Defense counsel further argued Fuentez's prior attorney was incompetent for failing to discuss with Fuentez whether his prior convictions were eligible to be reduced to misdemeanors pursuant to section 1170.18 (Proposition 47).

The court denied Fuentez's motion, explaining:

"I should articulate my views .... In regard to the denial of probation, first of all, the defendant has an extensive record of criminality, and the crimes are not just drug crimes, but the violent crime, the battery on the spouse, and then the theft crime and the current offense indicate that he has a pattern of criminality that is - and a history of scofflaw behaviors, his failures to appear, all of which make it inappropriate to consider that he would succeed on a grant of probation.

"In regard to eligibility, the Court did not see him as being ineligible. He is presumptively ineligible, but that is largely because of the drug convictions that were ordered to be entered as felonies under statutes that have now been changed and I view those differently. I would not consider them to be a major impediment.

"The impediment to a grant of probation here is his history of persistent criminality and his history of disregard for court orders. Those make it unlikely that he would succeed on a grant of probation. So even if we view this case as one where he is eligible to be considered, and I do view it that way, he is not appropriate to be granted probation. [¶ ]…[¶ ]

"So the denial of probation is appropriate because of that history and because of the circumstances of the current offense, and the recommendation of the mid term is also appropriate in light of the circumstances of the current offense, ... the Court views the aggravating and mitigating circumstances to be essentially in balance in this case."

The court denied probation and sentenced Fuentez to a state prison term of two years.

DISCUSSION

I. The Court's Failure to Inform Fuentez that Probation was Disfavored was Harmless Error

A defendant must be advised of any admission which prevents consideration of probation. (People v. Caban (1983) 148 Cal.App.3d 706, 712.) Pursuant to section 1203, subdivision (e)(4), Fuentez had two prior felony convictions which rendered him presumptively ineligible for probation unless the court found "the interests of justice would best be served if ... [he were] granted probation." (§ 1203, subdivision (e).) Although probation was legally possible in his case, Fuentez argues the trial court committed prejudicial error by failing to advise him that probation was statutorily disfavored. The People disagree, as do we.

A. Standard of Review

Section 1018 permits a defendant to move to withdraw his or her plea for good cause at any time before judgment is entered. (§ 1018.) "A defendant seeking to withdraw a plea based on the failure to advise on the direct consequences of a conviction must show actual ignorance of those consequences. [Citation.] The defendant also must show prejudice in the form of a reasonable probability that he or she would not have entered the plea had a proper advisement been given." (People v. Dillard (2017) 8 Cal.App.5th 657, 665; People v. Cates (2009) 170 Cal.App.4th 545, 552; People v. Archer (2014) 230 Cal.App.4th 693, 706.)

The granting of a motion to withdraw "made by a defendant who entered his plea with counsel is discretionary with the court and we will not disturb the trial court's ruling in the absence of a clear demonstration of abuse of discretion." (People v. Quesada (1991) 230 Cal.App.3d 525, 538.) "Discretion is abused only when ' "... the court exceeds the bounds of reason, all of the circumstances before it being considered." ' " (People v. McDonough (1961) 198 Cal.App.2d 84, 90.)

B. Analysis

Fuentez contends the trial court prejudicially erred by failing to advise him that probation was statutorily disfavored in his case. Two cases from this Court are instructive.

In People v. Spears (1984) 153 Cal.App.3d 79, 87 (Spears), the trial court led the defendants to believe probation was likely when, in fact, probation was statutorily disfavored. Although no explicit assurances had been made, the court advised one of the defendants there was "a good likelihood" he would receive probation. (Id. at p. 83.) Further, the climate of the plea negotiations was "one of real anticipation on the part of the defendants and counsel, if not the court, that probation was likely." (Id. at p. 84.) The trial court had also made references to probation without giving "the slightest hint that there were statutory hurdles not faced by the other defendants, or to criminal defendants in general." (Id. at p. 87.) Consequently, "because probation was statutorily disfavored, the advice was misleading to the extent that the defendants had been permitted by the court to believe that probation was likely." (Ibid.)

Although this court declined to hold that a court must invariably advise a defendant that a plea invoking the presumption against probation applies, we concluded "the need to advise a defendant that probation is disfavored when the plea and admissions make it so, and the defendant, counsel, and the court appear to consider probation 'likely.' In that situation, to avoid having to grant a subsequent motion to withdraw the plea, the court must disclose the full consequences of such a plea; it shall not consider advice of the maximum punishment permitted by law to be sufficient." (Spears, supra, 153 Cal.App.3d at p. 87, italics in original.) Based upon the facts presented, we reversed the lower court's denial of the defendants' motion to withdraw their plea.

In People v. Vento (1989) 208 Cal.App.3d 876 (Vento), this court reached a contrary conclusion. In Vento, the trial court indicated it "would not rule out the possibility" of probation and local sentencing; but stated it also was unwilling to "rule out the possibility of a state prison commitment." (Id. at p. 878.) On appeal, Vento argued the trial court's expression of willingness to consider probation was misleading, "since in fact probation could only be granted in an unusual case where the interests of justice would best be served." (Ibid.)

As in Spears, Vento had not been informed at the time he entered his plea that probation was statutorily disfavored. (Vento, supra, 208 Cal.App.3d at p. 879.) However, unlike Spears, the record in Vento did "not show a climate of 'real anticipation' that probation was likely. Instead, the trial court simply indicated that it was ruling out none of its sentencing options." (Ibid.) Further, Vento never moved to withdraw from his plea and discussions at sentencing focused on whether the probation officer's conclusion that his was not an unusual case was correct. (Id. at p. 879.) "There [was] no indication at the time of sentencing that Vento was surprised by the statutory limitation on probation or that he felt the plea bargain was being breached either in letter or in spirit." (Id. at pp. 879-880.) Based upon the totality of the circumstances, this court rejected Vento's argument that his plea was improperly induced and affirmed the judgment. (Id. at p. 880.)

Although the issue is close, the case before us is more closely analogous to Vento than Spears. Nothing in the record demonstrates a "climate of 'real anticipation' that probation was likely." (Vento, supra, 208 Cal.App.3d at 879.) At no point did the trial court indicate there was "a good likelihood" Fuentez would receive probation. (See Spears, supra, 153 Cal.App.3d at p. 83.) Although the court advised Fuentez the sentencing judge would determine whether he would be "placed on probation or ordered to serve a penal commitment," it was not indicating he was likely to receive probation. The trial court was simply indicating the sentencing options available. (See Vento, supra, 208 Cal.App.3d at p. 879.) And, though the court told Fuentez he could "make an application for probation," that was not a suggestion that probation was likely to be granted. While statutorily disfavored, probation was not legally prohibited in his case.

Fuentez did move to withdraw from his plea prior to sentencing, a measure which could evince surprise as to the fact that a prison sentence had been recommended by probation. (Vento, supra, 208 Cal.App.3d at p. 879.) However, Fuentez's motion could also indicate surprise as to the fact that the probation officer had recommended a prison sentence of two years, rather than the low term of 16 months.

Fuentez claims his former trial counsel assured Fuentez he would receive a grant of probation in exchange for his guilty plea, even though Fuentez plead open. He directs this court to a declaration he filed in support of his motion to withdraw his guilty plea. In his declaration, he claims trial counsel told him he "would receive probation rather than a prison sentence."

In denying Fuentez's motion to withdraw his plea, the trial court rejected Fuentez's claim of ineffective assistance of counsel. Because such an explicit assurance by trial counsel would have provided a clear basis for ineffective assistance of counsel—regardless of whether the trial court misadvised Fuentez—it is reasonable to infer the court did not find Fuentez's declaration credible. We accept the lower court's credibility determination. (People v. Pre (2004) 117 Cal.App.4th 413, 421 [a reviewing court does "not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses"]; People v. Boyer (2006) 38 Cal.4th 412, 444 [a reviewing court defers to a lower court's credibility determinations where supported by substantial evidence].) This was Fuentez's strongest argument for why his motion to withdraw his plea should have been granted, yet he presented no evidence to corroborate his claim.

Fuentez could have subpoenaed his former trial counsel or his client file. Although Fuentez's declaration claims he was unable to contact his former attorney, a substitution of counsel was signed by his former attorney on September 7th. Thus, counsel's whereabouts were known prior to the hearing on Fuentez's motion to withdraw his plea. In any event, despite a lack of evidence to corroborate his claim, Fuentez's declaration contains other assertions that were rejected by the trial court, including his claim that he did not waive his right to a preliminary examination. This undermines the credibility of his other claims. --------

In light of the severity of the charges confronting Fuentez, his poor performance on probation, and in the absence of any encouraging remarks by the court or the prosecutor, there was no reasonable basis for him to have believed that probation was likely. We therefore conclude the trial court did not abuse its discretion in denying Fuentez's motion to withdraw his plea.

II. Ineffective Assistance of Counsel Has Not Been Shown

Fuentez contends his former trial counsel rendered ineffective assistance of counsel on two grounds. First, by failing to advise Fuentez he was presumptively ineligible for probation. Second, by failing to file a motion pursuant to section 1170.18, the effect of which would designate his prior offenses misdemeanors. This redesignation would have removed the statutory presumption of ineligibility from his sentence. We conclude any presumed error is harmless.

A. Relevant Legal Standard

To successfully challenge a guilty plea on the basis of ineffective assistance of counsel, a defendant must establish both: (1) deficient performance by trial counsel; and (2) a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 58-59, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Whether counsel's performance was deficient, and whether any deficiency prejudiced defendant, are mixed questions of law and fact subject to our independent review." (In re Gay (2020) 8 Cal.5th 1059, 1073.)

B. Analysis

1. Trial Counsel's Failure to Advise

Fuentez alleges his former trial counsel failed to advise him that he was presumptively ineligible for probation based upon his prior convictions. More so, Fuentez claims counsel assured Fuentez he would receive a grant of probation in exchange for his plea. Fuentez contends if he had been properly advised, he could have taken measures to bolster his argument that he should be granted probation. His argument is problematic for two reasons.

First, as discussed in part I.B., ante, the trial court implicitly rejected Fuentez's claim that his former trial counsel assured Fuentez he would be granted probation. In any event, without any other independent corroborating evidence, self-serving post hoc assertions cannot "sustain the defendant's burden of proof as to prejudice." (People v. Vivar (2019) 43 Cal.App.5th 216, 230, review granted Mar. 25, 2020, S260270; Lee v. United States (2017) 137 S.Ct 1958, 1967 [courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies]; People v. McClellan (1993) 6 Cal.4th 367, 378 [defendant's claim that he would not have plead guilty had he been properly advised is insufficient where the record on appeal does not contain contemporaneous evidence to support his contention].) Nothing upon this record independently corroborates Fuentez's claim.

Second, at no point does Fuentez allege he would invariably have received a grant of probation but for his trial counsel's alleged misadvisement. Nor does Fuentez assert that but for counsel's misadvisement, he would have insisted on proceeding to trial. (Hill v. Lockhart, supra, 474 U.S. at pp. 58-59.) Fuentez contends that had trial counsel properly advised him, he "would have refrained from entering his plea until such time as he had successfully petitioned to have his drug offenses reduced to misdemeanors." According to Fuentez, this would "perhaps have had the probation officer view [Fuentez's] history in a more positive light." As Fuentez merely suggests he may have ultimately received a positive sentencing recommendation by probation, his claim is insufficient to demonstrate actual prejudice.

2. Counsel's Failure to File a Motion to Reduce Fuentez's Convictions to Misdemeanors

Fuentez further contends trial counsel was incompetent for failing to file motions which would have removed the statutory presumption of ineligibility from his sentence. According to Fuentez, if his prior convictions had been reduced to misdemeanors prior to the filing of the probation officer's report, "it is likely that the officer would have recommended a grant of probation."

In addressing Fuentez's claim, we will presume error. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." (Strickland, supra, 466 U.S. at p. 697; In re Welch (2015) 61 Cal.4th 489, 516; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

Fuentez's assertion that the probation officer would have recommended that he receive a grant of probation is purely speculative, as is the implication that such a recommendation would have made any difference at all with respect to the sentence imposed by the court. In denying Fuentez's motion and sentencing him to prison, the trial court gave a detailed statement of reasons in support of its decision. The court acknowledged Fuentez was presumptively ineligible for probation based upon his prior felony convictions, but stated it "would not consider them to be a major impediment." The court explained:

"In regard to the denial of probation, first of all, the defendant has an extensive record of criminality, and the crimes are not just drug crimes, but the violent crime, the battery on the spouse, and then the theft crime and the current offense indicate that he has a pattern of criminality that is - and a history of scofflaw behaviors, his failures to appear, all of which make it inappropriate to consider that he would succeed on a grant of probation. [¶ ] … [¶ ]

"The impediment to a grant of probation here is [Fuentez's] history of persistent criminality and his history of disregard for court orders. Those make it unlikely that he would succeed on a grant of probation. So even if we view this case as one where he is eligible to be considered, and I do view it that way, he is not appropriate to be granted probation." (Italics added.)

Because the sentencing court treated Fuentez as presumptively eligible for probation, Fuentez is unable to show prejudice from trial counsel's failure to file a petition pursuant to section 1170.18. Upon this record, we are unable to conclude such a motion would have made any difference at all with respect to the outcome of this case.

Fuentez surmises the trial court erroneously denied him probation based upon a misreading of his criminal record. According to Fuentez, the sentencing court's erroneous findings "were likely the result of the probation officer's presentence report which was negatively skewed." This claim is based upon speculation, not proof of actual prejudice. We reject Fuentez's claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Fuentez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Mar 23, 2021
F078361 (Cal. Ct. App. Mar. 23, 2021)
Case details for

People v. Fuentez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TORIVIO FUENTEZ III, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Mar 23, 2021

Citations

F078361 (Cal. Ct. App. Mar. 23, 2021)