P. v. Rivera

Filed 11/30/05 P. v. Rivera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. FRANKIE JAVIER RIVERA, Defendant and Appellant.

E037237 (Super.Ct.No. FVA013568) OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler, Judge. Reversed and remanded with directions.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to one count of second degree murder (Pen. Code, § 187);^[1] in exchange, the remaining two counts of murder and one count of attempted murder, as well as the enhancement allegations, were to be dismissed. Thereafter, in accordance with the plea agreement, the trial court dismissed the remaining allegations and enhancements and sentenced defendant to the promised sentence of 15 years to life in state prison. Defendant’s sole contention on appeal is that the trial court erred in failing to hold a hearing on his written request to withdraw his guilty plea based on ineffective assistance of counsel, and therefore this court should remand the matter so he can have a hearing on his motion. We agree and will therefore reverse and remand the matter for the limited purpose of holding a hearing on defendant’s request to withdraw his guilty plea.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Prior to May 1, 2000, Judy Alvarado sold illegal drugs and paid a “tax” on those sales to a member of the Verdugo gang. Upon his marriage to Alvarado, the victim, Tony Ayala, convinced Alvarado to stop paying the tax. The Verdugo gang members told Alvarado that she “still had to pay [her] taxes no matter what . . . .”

Shortly after midnight on May 1, 2000, a group of men arrived at Alvarado’s and Ayala’s house to collect the tax. Alvarado was standing at her front door, which was open, behind a locked metal security screen door. Looking through the screen door, she saw seven men standing in her front yard “trying to sneak to [the] backyard.” Alvarado identified defendant as one of the seven subjects. The men demanded to speak with Alvarado and Ayala. Even after Alvarado repeatedly told the men that they were at the wrong house, the men did not leave.

After the men had been there for about half an hour, Ayala arrived home in his car with his friend, Norman Campos, seated in the front passenger seat of the vehicle. Ayala parked in the driveway, and the men rushed to Ayala and Campos. The men then began asking Ayala questions about whether he knew someone named Darrell. As Ayala tried to exit the vehicle, the men fired four to five shots at him. Ayala sustained numerous bullet wounds to the head and one to his chest; he died from these wounds.

On September 28, 2000, an information was filed charging defendant with three counts of first degree murder (§ 187) (counts 1, 3, and 4) and one count of attempted first degree murder (§§ 664/187) (count 2).^[3] The information also alleged numerous enhancement allegations pursuant to sections 186.22, subdivision (b)(4), 190.2, subdivision (a), and 12022.53, subdivision (d).

On July 21, 2004, following a lengthy pretrial process and pursuant to a plea agreement, defendant pleaded guilty to the lesser included offense in count 1 of second degree murder, in exchange for the dismissal of the remaining charges and enhancement allegations and a sentence of 15 years to life. Defendant also agreed to give up his right to appeal from the conviction and judgment in exchange for the substantial benefit of his plea bargain.

At the time of the taking of the plea, defendant indicated that no one had promised him anything or threatened him to change his mind and plead guilty; that he was pleading freely and voluntarily; and that he had sufficient time to discuss the case with his attorney in regard to the charges, consequences of the plea, and possible defenses. Defendant also acknowledged that he had understood the plea form, that he had initialed and signed the plea form, and that he had gone over it with his attorney. The trial court thereafter advised defendant of his constitutional rights to a jury trial, to present a defense, to confront and cross-examine witnesses, and to remain silent. Upon the court’s questioning, defendant stated that he understood those constitutional rights and that he gave up each of those rights. After the court explained to defendant the sentence of 15 years to life and the conditions of future release and inquired whether defendant had any questions, defendant pleaded guilty to the second degree murder charge, and the court accepted the plea. The court subsequently found that defendant had freely, voluntarily, intelligently, and knowingly waived his constitutional rights; that defendant understood the nature of the charges and the consequences of the plea; and that, based on counsel’s stipulation, the preliminary hearing transcript, and police reports, there was a factual basis for the plea.

On October 27, 2004, the trial court received a letter from defendant requesting a withdrawal of his guilty plea based on inadequate representation by trial counsel.

At the October 29, 2004, sentencing hearing, defendant apparently made a motion to withdraw his guilty plea based on not being advised of conduct credits. Neither defendant nor his counsel said anything about inadequate representation during this hearing. The trial court denied the motion to withdraw the guilty plea, finding “the lack of ability to obtain conduct credits is a collateral consequence and not a direct consequence of a guilty plea . . . .” In accordance with the plea agreement, the court then dismissed the remaining charges and enhancement allegations and sentenced defendant to 15 years to life in state prison.

On November 17, 2004, the deputy clerk of the superior court sent the sentencing court a “request for further action” (capitalization omitted) regarding defendant’s letter. The sentencing court ordered the clerk to do a minute order noting that defendant’s motion to withdraw his guilty plea previously had been denied and that the court no longer had jurisdiction.

On November 23, 2004, the trial court issued a minute order indicating that the motion to withdraw the guilty plea previously had been denied, that the trial court no longer had jurisdiction, and that the motion to withdraw was untimely.

On December 27, 2004, defendant filed a notice of appeal on the basis of matters occurring after the plea and challenging the validity of the plea agreement. He also requested a certificate of probable cause, noting, among others things that the court “erred in denying Defendant’s Motion to Withdraw His Plea due to his unknowing that he would be denied good time/work time credits as set forth in Penal Code Section 2933.2.”

On January 4, 2005, the trial court granted defendant’s request for certificate of probable cause.

II

DISCUSSION

Defendant contends this court should remand the matter for a hearing on his written request to withdraw his guilty plea based on ineffective assistance of counsel as the court below failed to address that ground at the sentencing hearing when it denied his request to withdraw his plea concerning conduct credits. The People respond defendant has waived his right to appeal, despite the issuance of the certificate of probable cause. For the reasons state below, we are inclined to agree with defendant.

Citing this court’s decision in People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas), the People urge that a waiver of the right to appeal entered into as a part of a plea agreement is fully enforceable and encompasses all possible grounds of appeal arising prior to the agreement, ineffective assistance of counsel claims included. Defendant essentially claims that Vargas has no application when the waiver itself was induced by ineffective assistance.

The defendant in Vargas moved successfully on the eve of trial to remove the latest in a succession of counsel appointed to represent him. (Vargas, supra, 13 Cal.App.4th at p. 1656.) The trial court granted Vargas’s request to proceed in propria persona but denied a continuance of the trial. (Ibid.) After trial began, Vargas entered into plea negotiations with the prosecutor, ultimately agreeing to plead guilty to one count in return for the dismissal of all other charges. (Id. at pp. 1656-1657.) As part of the plea agreement, defendant waived his right to appeal. (Id. at p. 1657.) Vargas nonetheless appealed, arguing in part that the failure to grant him a continuance abridged his right to effective counsel, thereby invalidating his subsequent waiver of the right to appeal. (Id. at p. 1659.) This court in Vargas held that defendants may validly waive the right to appeal and will be bound by it as to all issues arising before the plea agreement is made, as long as the waiver is “knowing, intelligent and voluntary.” (Id. at p. 1661; see also People v. Panizzon (1996) 13 Cal.4th 68, 79-80.) On the record before it, focusing particularly on the defendant’s demonstrated knowledge of the criminal justice system and successful negotiation of a very favorable agreement, this court found that Vargas’s waiver was knowing, intelligent, and voluntary. (Vargas, at p. 1661.)

However, Vargas does not resolve the question of whether a waiver of appeal directly induced by advice of counsel falling below the constitutional standard of competency can be knowing, intelligent, and voluntary. Although no California case is directly on point, several federal circuit courts have answered this question in the negative, declining to enforce purported waivers of the right to appeal or bring habeas proceedings when the waiver itself is the product of ineffective representation. (See, e.g., U.S. v. Cockerham (10th Cir. 2001) 237 F.3d 1179, 1187 [waiver in plea agreement no bar to ineffective assistance claims challenging counsel’s representation in negotiating and entering into agreement]; DeRoo v. U.S. (8th Cir. 2000) 223 F.3d 919, 923-924 [decision to waive appeal cannot be knowing and voluntary when plea agreement itself is the result of advice outside the range of competence required of criminal defense attorneys]; U.S. v. Henderson (5th Cir. 1995) 72 F.3d 463, 465 [waiver of appeal does not bar claim that plea agreement was tainted by ineffective assistance of counsel].)

Here, defendant’s plea agreement included an explicit waiver of his right to appeal. He initialed paragraph 20 of the plea form, which states “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” Nonetheless, a waiver is only valid if the record demonstrates that the defendant has intentionally relinquished or abandoned a known right or privilege. (Vargas, supra, 13 Cal.App.4th at pp. 1661-1662.) A “‘valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]’ [Citation.]” (Id. at p. 1662.) “The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.]” (Ibid.)

In the present matter, a significant omission in the admonishments given to defendant leads us to conclude that defendant did not waive his right to a hearing on his written request to withdraw his guilty plea based on ineffective assistance of counsel. Defendant did not make a knowing and intelligent waiver of his right to challenge trial counsel’s competency in negotiating and entering into the plea agreement. A defendant must be advised of the “direct consequences” of his admission. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; In re Moser (1993) 6 Cal.4th 342, 351.) Defendant here was not advised that he was giving up the right that he could move to withdraw his guilty plea based on ineffective assistance of counsel. Because he was not so advised, we do not see “‘actual and demonstrable knowledge [on defendant’s] part of the . . . right [allegedly] being waived.’” (Vargas, supra, 13 Cal.App.4th at p. 1662.)

Fundamental constitutional principles also support our position. “Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel.” (In re Resendiz (2001) 25 Cal.4th 230, 239, quoting In re Alvernaz (1992) 2 Cal.4th 924, 933; see generally Hill v. Lockhart (1985) 474 U.S. 52, 57-59 [106 S.Ct. 366, 88 L.Ed.2d 203].) A criminal defense attorney has an obligation to his client at the plea bargain stage of proceedings. “‘Although [the decision as to whether to plead guilty pursuant to a plea bargain is a decision ultimately made by the defendant], it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain. The defendant can be expected to rely on counsel’s independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.]’ (Citation.)” (People v. Maguire (1998) 67 Cal.App.4th 1022, 1028, quoting Alvernaz, at p. 933.)

The entry of a plea must be a “‘voluntary and intelligent choice among the alternative courses of action open to the defendant.’ [Citations.]” (Hill v. Lockhart, supra, 474 U.S. 52, 56.) The voluntariness of a plea depends on “whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ [Citation.]” (Ibid.) “It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.]” (In re Alvernaz, supra, 2 Cal.4th at p. 934; see also People v. Maguire, supra, 67 Cal.App.4th at p. 1028.)

Accordingly, because the trial court did not entertain defendant’s complaints about appointed counsel at sentencing, we will remand the matter for the limited purpose of holding a hearing on defendant’s informal written request to withdraw his guilty plea based on trial counsel’s alleged incompetent performance prior to entering into the plea agreement.^[4]

III

DISPOSITION

The judgment is reversed and remanded for the limited purpose of holding a hearing on defendant’s request to withdraw his plea based on ineffective assistance of counsel. If the trial court denies the motion, it must reinstate the original judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

GAUT

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] The factual background is taken from the preliminary hearing transcript since the parties stipulated to the use of the preliminary hearing transcript as the factual basis for the guilty plea.

^[3] Count 1 alleged victim Ayala; count 2 alleged victim Campos; and counts 3 and 4 alleged victims Clint Acquistapache and Jose Ortega, respectively, arising from a separate incident.

^[4] The People argue that “there is no basis for a remand on the issue of withdrawal of the guilty plea.” (Capitalization omitted.) We disagree. Because the trial court failed to address defendant’s written request to withdraw his guilty plea based on ineffective assistance of counsel, which was filed prior to the sentencing hearing, a remand is necessary.

Our Supreme Court’s decision in People v. Smith (1993) 6 Cal.4th 684 provides some guidance. “ . . . ‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (Id. at pp. 692-693.) Accordingly, “substitute counsel should be appointed when, and only when, necessary under the [People v.] Marsden [(1970) 2 Cal.3d 118] standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. This is true whenever the motion for substitute counsel is made. There is no shifting standard for the trial court to apply, depending upon when the motion is made.” (Id. at p. 696.) “[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.” (Ibid.)