P. v. Diblasi

Filed 7/24/07 P. v. Diblasi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.

Dennis Diblasi entered a negotiated guilty plea to an aggravated assault charge, and admitted he personally used a deadly weapon while committing the offense. (Pen. Code,^[1]  245, subd. (a)(1), 1192.7.) Pursuant to the parties' plea agreement, the court imposed a two-year sentence. ( 245, subd. (a)(1).)

Diblasi then unsuccessfully moved to withdraw his plea. On appeal, Diblasi contends: (1) the trial court abused its discretion in denying his motion to withdraw the guilty plea; and (2) his counsel was ineffective because he did not investigate the victim's criminal record before advising him on the plea offer. We conclude these contentions lack merit and affirm.

FACTUAL AND PROCEDURAL SUMMARY

The criminal charges filed in this case were based on a police report containing the following information. On November 23, 2005, police searched the home of Thuhuhyen Tran, pursuant to a Fourth Amendment waiver. During the search, Diana Pickett was in Tran's home. Pickett was also on probation with a Fourth Amendment waiver. The officer noticed that Pickett had a bandage around her arm and questioned her about the wound. Pickett responded that "Drago" (referring to Diblasi) stabbed her. Diblasi is a documented "Oriental Boy Soldiers" gang member.

Upon further questioning, Pickett told the officers that Tran previously dated Diblasi, but Tran broke up with him. Pickett heard rumors that Tran liked her, and following release from jail, Pickett and Tran started dating. Diblasi was very upset when he found out about their relationship. He followed them around and left threatening messages on their phones.

On November 17, Pickett went to a caf. A short time later, Diblasi entered the caf holding three scalpel blades in between his knuckles. Diblasi approached Pickett and punched her in the arm. As she fell to the ground, Pickett felt a sharp pain in her arm. Diblasi then continued to punch her. In addition to the stab on her arm, Pickett also had a cut on her chin and scrape marks on her wrist.

On November 30, 2005, the district attorney filed charges against Diblasi based on the facts in the police report. The charges alleged that Diblasi committed an assault upon Pickett with a deadly weapon and instrument by means of force likely to produce great bodily injury. ( 245, subd. (a)(1).) The charges further alleged that Diblasi personally used a weapon in committing the assault. ( 1192.7, subd. (c)(23).) At the time, Diblasi had a substantial criminal record.

Less than two weeks later, on December 9, Diblasi pled guilty to the assault charge and admitted he personally used a weapon in committing the assault. This plea was made pursuant to a plea bargain in which Diblasi stipulated to a two-year prison term. Diblasi signed a plea of guilty form, acknowledging that his plea was freely and voluntarily given, and that he did commit "an assault with a deadly weapon to wit a knife."

Four months later and before judgment was entered, Diblasi moved to withdraw his guilty plea. As grounds for the motion, Diblasi claimed his public defender did not review Pickett's criminal records before advising him regarding the proposed plea bargain.^[2] In his declaration, Diblasi stated that he first met with his public defender, Dan

Tandon, on December 9, the day he entered the plea. According to Diblasi, Tandon said "I was accused of stabbing Diana Pickett, it would be my word against hers, that she is a woman and I am a man (with many tattoos) and she would likely be more believable. I was told that if I were guilty, 2 years was a good deal; if I was innocent, it was a bad deal. I was told that my exposure was higher than 2 years and I should make my decision on that basis." Shortly after this conversation, Diblasi agreed to plead guilty to the charges.

Diblasi stated that he has "since received the police reports from my new lawyer and have determined that the allegations against me are false and I am innocent of the charges against me." Specifically, Diblasi claimed he would not have pled guilty if he had known that Pickett had criminal charges pending on the date he agreed to the plea bargain. Diblasi produced a copy of the charging sheet showing that on November 29, 2005, the district attorney had filed charges against Pickett relating to her stealing a firearm from her father on November 16, 2005 (the day before Diblasi assaulted Pickett), and possessing methamphetamine. Pickett later pled guilty to stealing the gun.

Diblasi also produced information that several months after he pled guilty, the district attorney charged Diblasi's former girlfriend (Tran) with shooting at a residence on November 19, 2005. The charges alleged Tran was the driver while a passenger (Jorge Ramos) fired the weapon. According to police reports filed in connection with these charges, Pickett was sitting in the rear seat. Diblasi stated in his declaration that he was in the residence at that time, but this fact was not part of the criminal charges.

At the hearing on Diblasi's motion, Diblasi testified that when he met with Tandon, he did not tell Tandon that he thought Pickett had been involved in a shooting against him. When asked why he did not tell his counsel, he stated, "I'm 33 years old. As you can see, I'm a documented gang member. I've been in and out of prison, and I just can't get up there and say, no, this is what really happened. So I was just keeping my mouth closed and hoping for the best." He further acknowledged that he had four prior felony convictions, and that he was "worried" about the risk of going to trial and that he would not be believed by a jury. From his "prison knowledge," he believed he could be sentenced to a 12-year term based on his prior record.

Deputy public defender Tandon testified that he first met with Diblasi on December 9, the day scheduled for the felony disposition conference. At that time he had reviewed the police report, but had not yet performed an independent investigation because the case was at a very early stage in the criminal process. Tandon told Diblasi about the contents of the police report, including that the police officers saw the stab wound on Pickett. Based on this fact, Tandon believed the primary issue at trial would be the perpetrator's identity and the jury's determination would likely turn on credibility issues. Tandon told Diblasi that a jury would tend to believe the victim because of her gender, and that Diblasi's credibility would be suspect because of his numerous tattoos that could not be covered up and from his gang affiliation that was apparent from the tattoos. Diblasi informed counsel that he and Pickett knew each other, did not get along, and that Pickett was involved in a relationship with Tran, Diblasi's former girlfriend. Tandon said these facts would tend to establish a motive for the assault and therefore would help the prosecution. Tandon and Diblasi also discussed that the victim (Pickett) "didn't seem entirely clean."

Tandon felt that he had enough time discussing the issues with Diblasi. Tandon said that if he had known about the felony charges pending against Pickett, the charges would have been "something of interest" as possibly affecting Pickett's credibility. However, Tandon's ultimate recommendation on the plea offer was based primarily on Diblasi's extensive criminal record, and not specific credibility issues. He told Diblasi that if Diblasi committed the offense, the two-year deal was "good," and it was a "bad" deal if he did not commit the offense. The conversation took approximately 30 minutes. At the end of the conversation, Diblasi told him he wanted to plead guilty.

At the conclusion of the hearing, the court found that Diblasi did not establish good cause for withdrawing the plea. The court stated: "the defendant has not presented clear and convincing evidence . . . that his plea was a result of either mistake, influence, or any other factor that overcame his will . . . ." The court also found that defense counsel's conduct did not fall "outside the standard of what a reasonable attorney would do." The court thus denied Diblasi's motion, and imposed the two-year term.

DISCUSSION

I. CourtDid Not Abuse its Discretion in Declining to Set Aside Plea

Diblasi contends the court abused its discretion when it found Diblasi did not establish good cause to vacate the plea.

Section 1018 provides that before entry of judgment a court may permit a defendant to withdraw a guilty plea for good cause. ( 1018; People v. Sandoval (2006) 140 Cal.App.4th 111, 123;People v. Weaver (2004) 118 Cal.App.4th 131, 145.) To establish good cause, the defendant must show mistake, ignorance, inadvertence, fraud, duress, or any other factor overcoming the exercise of his or her free judgment. (People v. Sandoval, supra, at p. 123.) The burden is on the defendant to present clear and convincing evidence showing the ends of justice would be served by permitting a plea change. (Ibid.)

A trial court has broad discretion when ruling on a motion to withdraw a plea. (People v. Sandoval, supra, 140 Cal.App.4th at p. 123.) " ' "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." [Citation.]' " (Ibid.; People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.) Although section 1018 must be liberally construed to promote justice, a plea may not be withdrawn merely because the defendant changed his or her mind. (In re Vargas (2000) 83 Cal.App.4th 1125, 1143; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

Applying these standards, the court did not abuse its discretion in denying Diblasi's motion. The record supports that Diblasi's decision to accept the plea offer arose from his free judgment. There was no evidence his counsel pressured him, or otherwise compelled him to accept the deal. Diblasi's counsel provided him with accurate information, including that the deal was a good one if he committed the crime, and properly evaluated credibility issues likely to arise at trial. His counsel made an accurate assessment that Diblasi was likely to have substantial credibility problems with the jury given his obvious gang affiliations (documented with tattoos on his shaved head), his substantial prior criminal record, and the fact that a prior dispute existed between the parties. Counsel further accurately explained to Diblasi that a jury would likely find Pickett to be a relatively more credible witness based on her gender and Pickett's relationship with Diblasi's former girlfriend (providing a motive for the attack). In these discussions, both Diblasi and his counsel understood that Pickett did not have a "clean" background and that she would not necessarily be a good witness, but that she probably would be a better witness than Diblasi.

Diblasi contends there was good cause to vacate his plea because his counsel failed to discover that Pickett had criminal charges pending against her at the time he entered the plea. This contention is unpersuasive. The existence of the criminal charges did not create a new defense or change the fundamental nature of the credibility assessment. At most the criminal charges could be potentially used as evidence to challenge Pickett's credibility. Moreover, contrary to Diblasi's assertions, the record does not show the criminal charges were related to Diblasi's case. Diblasi argues that Pickett was involved in an attempt to use the gun against him. However, this argument is unsupported by the record. On the date of the plea bargain, the facts unknown to Diblasi and his attorney were that Pickett had been charged with stealing a gun from her father and possessing methamphetamine. Other than Diblasi's unsupported assertions (which the trial court was entitled to reject), there was no evidence that this gun was ever used against him.

On this record, the court had a substantial basis to find that Diblasi's ignorance of the pending criminal charges against Pickett did not preclude him from understanding and appreciating the charges against him, comprehending his constitutional rights, and realizing the consequences of his plea. When a defendant accepts a highly favorable plea offer at the earliest stages of the criminal process, his incomplete knowledge of all relevant evidence that may emerge is not a basis to permit the defendant to withdraw the plea. Diblasi, who admits he was knowledgeable about the criminal justice system and understood that he faced a lengthy prison sentence, but opted for the certainty of a short sentence, cannot now credibly claim that the court erred in rejecting his motion to withdraw his guilty plea.

II. Court Did Not Err in Rejecting Ineffective Assistance of Counsel Claim

Diblasi alternatively contends his attorney provided ineffective assistance by failing to investigate the case more fully before advising him to accept the plea agreement.
"Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled . . . to the effective assistance of legal counsel. [Citations.] '[W]here 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.] [] To establish ineffective assistance of counsel . . . , a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant." (In re Resendiz (2001) 25 Cal.4th 230, 239.) "[T]he reasonableness of defense counsel's conduct must be assessed 'under the circumstances as they stood' at the time of counsel's acts or omissions; 'second-guessing' is to be avoided. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 449.)

Diblasi failed to show that his counsel acted below an objective standard of reasonableness. The prosecution made the plea offer less than two weeks after Diblasi was charged. Tandon testified that at this early stage, he generally does not conduct an investigation (absent specific information triggering a need for an investigation) and instead will discuss the known facts and relevant issues with his client. Tandon did not believe an investigation of the victim's background was necessary because his assessment of the case was based primarily on his belief that the offer was very favorable if Diblasi in fact committed the offense, particularly given Diblasi's substantial criminal record. Further, counsel was already aware that the victim had a criminal record, and therefore there was no obvious need to conduct additional investigation at this stage of the litigation. There was also nothing on the face of the police report or Diblasi's statements that would have led a reasonable counsel to suspect the existence of pending criminal charges. Although Diblasi says he had information about a shooting in which Pickett was allegedly involved, he chose to keep this information from his attorney.

Diblasi did not present any evidence that a reasonably competent attorney would have acted differently under these circumstances. Moreover, Diblasi does not cite to any legal authority establishing a defense attorney has a duty to investigate the victim's criminal history before the felony disposition hearing. The decisions relied upon by Diblasi are inapposite because they concern a defense counsel's duties to prepare for trial. (Lord v. Wood (9th Cir. 1999) 184 F.3d 1083, 1096; Turner v. Duncan (9th Cir. 1998) 158 F.3d 449, 456.)

We reject Diblasi's argument that we should adopt a new rule that an investigation of the victim's criminal background is a necessary predicate to a valid plea at every stage of the criminal process. Absent some basis for a reasonable attorney to conclude that a more complete investigation is necessary, there is no mandatory duty for counsel to perform a particular type of investigation before advising the defendant on a plea offer made before the preliminary hearing.

Additionally, Diblasi failed to establish prejudice from the alleged ineffective assistance. To show prejudice, Diblasi was required to establish there was a reasonable probability that, but for counsel's alleged incompetence, he would not have pled guilty and would have insisted on proceeding to trial. (In re Resendiz, supra, 25 Cal.4th at p. 253.) To prevail, the defendant's claim must be " 'corroborated independently by objective evidence.' " (Ibid.)

In this case, defense counsel accurately communicated the offer and accurately analyzed the status of the case at its very early stage. Diblasi made clear in his testimony that he understood he could receive a substantial prison term if he was found guilty at trial, and he wanted to avoid this outcome. At the time, he recognized he would have a difficult time prevailing at trial because he was a "documented gang member," who had four prior felony convictions and had "been in and out of prison." He said he was very "worried" about the consequences of going to trial. Based on this assessment, he considered the plea offer to be "pretty much a lovely deal."

On this record, it is not reasonably probable if Diblasi had known about the charges against Pickett that he would have rejected the very favorable two-year term and instead insisted on proceeding to trial where the outcome likely would have resulted in a substantially longer prison sentence.

DISPOSITION

Affirmed.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Diblasi also alleged the public defender had a conflict and Diblasi was never properly informed of the charges against him. However, because Diblasi does not reassert these grounds as a basis for the appeal, we do not discuss the facts underlying these claims.