P. v. Ayala

Filed 9/6/07 P. v. Ayala CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, and Phillip M. Morris,^*Judges. Affirmed with directions.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Cheryl Sueing-Jones, acting Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant pled guilty to attempted murder (Pen. Code, 664, 187, subd. (a), count 1) and carjacking ( 215, subd. (a), count 4).¹ He also admitted that he personally used a firearm in the commission of the attempted murder ( 12022.53, subd. (b)) and that he committed the attempted murder to benefit a criminal street gang ( 186.22, subd. (b)(1)(C)). Pursuant to a plea bargain, defendant was sentenced to 25 years in state prison.

On appeal, defendant contends that the trial court abused its discretion by denying his motion to withdraw his guilty plea. If this court determines defendant waived his right to appeal the denial of his motion due to a failure to preserve it for appellate review, then defendant contends, in the alternative, that he was denied effective assistance of counsel. Defendant also contends that the abstract of judgment needs to be corrected to reflect that he did not plead guilty to first degree attempted murder.

STATEMENT OF FACTS

The parties stipulated the police reports would form the factual basis of the plea. On November 22, 2005, defendant and his codefendant approached two individuals in their car. Both defendants were holding large rifles. The smaller of the two defendants told the victims to exit the car while pointing a rifle at the male victim. That same defendant then shot the male victim, severing his finger. Defendant was later arrested in the victims car.

Defendant was charged with attempted murder ( 664/187, subd. (a), count 1); assault with a firearm (245, subd. (a)(2), count 2); assault by a machine gun or assault weapon ( 245, subd. (a)(3), count 3); and two counts of carjacking ( 215, subd. (a), counts 4 & 5). As to each of the five counts, it was alleged defendant personally used a firearm and acted to benefit a criminal street gang. ( 12022.53, subds. (b) & (e)(1), 186.22, subd. (b)(1)(A).) Defendants maximum exposure for the charges was 76 years to life, with multiple life terms.

At defendants plea proceedings, the court examined defendant to determine if he understood his rights and was intentionally waiving them. The court concluded defendant waived his rights knowingly and intelligently. The court then examined whether defendant understood the charges against him and the consequences of his plea. The court asked defendant if he understood the nature of the attempted murder and carjacking charges. Defendant responded affirmatively. The court questioned if defendant felt he had enough time to talk to his attorney about the charges against him and any possible defenses to the allegations. Defendant responded, Yes, your honor. Then the court inquired if defendant understood he would be sentenced to 25 years as a consequence of his plea. Defendant again responded, Yes, your honor. After determining that defendant was not pleading guilty due to force or intimidation, the court found defendants decision to plea was made freely and voluntarily.

The courts next step was to take defendants guilty plea. Pursuant to a plea bargain, defendant pled guilty to carjacking (count 4) and attempted murder (count 1). The court asked defendant if he admitted committing the attempted murder to benefit a criminal street gang. Defendant responded, Not for no street gang. Defendants trial counsel asked for one second to speak with his client, after which defendant admitted the gang allegation. He also admitted committing attempted murder while personally armed with a firearm. The court accepted the pleas and admissions, again finding that they were made freely.

At a hearing on March 8, 2006, defendant expressed his intent to withdraw his guilty plea. Defendant filed points and authorities in support of his motion, citing his attorneys failure to adequately advise him of his legal rights as good cause for withdrawing the plea. On June 29, 2006, the court held a hearing on the motion. Defendant testified that he understood he had entered a guilty plea with the consequence of being sentenced to 25 years in state prison, but claimed he did not know exactly what [he] was signing at the time. Defendant stated that he only spoke to his attorney two times for approximately 20 to 30 minutes at each meeting. Defendant testified that he knew he was charged with multiple crimes, but his trial attorney did not review with him the evidence concerning the allegations or possible defenses; rather, their conversations were focused on negotiating a plea bargain. Defendant also noted that he was not affiliated with a gang and had told them since the beginning that he was not a gang member.

Defendants trial counsel then testified regarding his representation of defendant.² He recalled speaking to defendant three or four times, and spending approximately an hour and a half with defendant discussing the case and possible plea agreements on the day prior to defendant pleading guilty. Trial counsel testified that he reviewed the facts of the case and evidence with defendant, including the photographic lineup identification, the live lineup identification, defendants fingerprint in the stolen car, and the discovery of defendant in the victims car shortly after the crime was committed. Trial counsel stated that he reviewed possible defenses with defendant, although the possibilities were limited.

The court found that defendants trial counsel had reviewed the facts of the case and various options with defendant. Furthermore, defendant made an informed decision to plead guilty and entered the plea freely and voluntarily. The court denied defendants motion to withdraw his plea. Defendant was sentenced to 25 years in state prison, pursuant to his plea bargain. Defendant requested and received a certificate of probable cause.

DISCUSSION

I. Motion to Withdraw Guilty Plea

A. Waiver

The People contend defendant waived his right on appeal to contest his attorneys alleged failure to explain the law in relation to the facts of his case because defendant failed to assert the issue at the hearing on the motion to withdraw his guilty plea. We disagree.

Generally, if a defendant claims an error on appeal that was not objected to at the trial court, then that error is waived. (In re Seaton (2004) 34 Cal.4th 193, 198.)

Defendant has not waived this argument, because it was raised in the trial court. In his points and authorities, which the trial court considered, defendant argued that his guilty plea should be withdrawn, because he entered the plea on the advice of an attorney who had improperly and inadequately advised him of his legal rights. This is essentially the same argument that defendant is raising on appealthat he was confused when he pled guilty due to his attorney failing to inform him of the law in relation to facts of the case. Inadequate advice about ones legal rights is the equivalent of not being notified of the law in relation to the facts of the case. Therefore, we find the issue was properly preserved for review.

B. Motion to Withdraw

Defendant contends there was good cause to withdraw his guilty plea because his attorney failed to explain to him the legal elements of the crimes he committed and how they related to the facts of his case. Defendant asserts that this lack of information caused him to be confused; he felt coerced when he pled guilty; and, therefore, the plea was not the product of his free judgment. We disagree.

In order to withdraw a guilty plea, a defendant must show by clear and convincing evidence that his plea was not the product of his free judgment, which can be proven with evidence that the defendant was mistaken, ignorant, or that any other factor overcame his free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) An appellate court will not reverse a denial of a motion to withdraw a guilty plea unless an abuse of discretion is clearly demonstrated. (People v. Holmes (2004) 32 Cal.4th 432, 442-443.) If two conflicting inferences may be drawn from the evidence, the appellate court must resolve the conflict in favor of the trial courts ruling. (People v. Harvey (1984) 151 Cal.App.3d 660, 667.)

Defendant has failed to demonstrate an abuse of discretion; he has merely asserted an interpretation of the evidence that is contradicted by the record and open to different inferences, which would favor the findings of the trial court.

First, defendant claims that the record does not support a finding that his attorney explained to him the legal aspects of his case. At the hearing on the motion, defendants trial counsel was not expressly questioned regarding whether or not he explained the legal elements of the offenses to defendant. However, at the plea proceedings, defendant was asked by the court if he understood the nature of the attempted murder and carjacking charges. Defendant responded affirmatively. Furthermore, the court asked if defendant felt he had enough time to talk to [his] attorney about what the charges are all about and any defenses [he] might have to the charges. Defendant responded by stating, Yes, your honor. The court then asked defendant if he understood that as a consequence of his guilty plea that he would be sentenced to 25 years in state prison. Defendant again responded by saying, Yes, your honor. Defendants claims of confusion due to his trial counsels failure to explain the law to him are contradicted in the record by his repeated statements that he understood his rights and the charges against him, as well as his statements that he had sufficient time to discuss his case and possible defenses with his attorney.

Second, defendant contends his statement [n]ot for no street gang, in response to the trial courts question regarding the gang allegation, demonstrates his confusion concerning the gang allegation. We find the statement is open to inferences that support the factual findings of the trial court. Not for no street gang could reasonably be interpreted as an objection to the gang being described as a mere street gang, as opposed to a citywide, countywide, or statewide gang. The statement does not demonstrate that defendant was confused by the gang allegation.

Third, defendant contends the conversation between himself and his attorney, following his comment [n]ot for no street gang, was too momentary to constitute a full explanation of section 186.22, subdivision (b)(1). Therefore, it is clear from the record that his attorney directed him to change his answer to admit the gang allegation despite his alleged confusion regarding the charge. First, we acknowledge the record does not reflect how long defendant and his trial counsel conferred on the matter, as there is no time stamp or exact time reference in the reporters transcript. However, if the conversation was brief, it does not necessarily lead to the inference that defense counsel directed defendant to answer affirmatively. Rather, it suggests an inference that trial counsel had already discussed the matter with defendant and was merely taking a moment to refresh defendants recollection about the meaning of the gang allegation. This portion of the record does not establish that defendants free judgment was overcome.

We conclude that the trial court did not abuse its discretion by denying defendants motion and, therefore, defendants state and federal due process rights were not violated.

II. Ineffective Assistance of Counsel

As we have found counsel adequately preserved defendants first contention for review, we need not address defendants alternate assertion regarding ineffective assistance of counsel.

III. Abstract of Judgment

Defendant requests the abstract of judgment be amended to reflect that he did not plead guilty to first degree attempted murder, because he did not expressly admit to acting willfully, deliberately, and with premeditation.³

Under section 664, subdivision (a), if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. [However, i]f the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.

Defendant was charged with attempted willful, deliberate, premeditated murder. However, he was sentenced to the low term of five years in state prison for count 1, and he did not expressly admit to the attempted murder being willful, deliberate, and premeditated. Furthermore, on the guilty plea form, the sentencing range for count 1 is listed as 5-7-9 yrs., indicating defendants plea bargain with the prosecutor included an agreement that defendant would plead to committing attempted murder that was not willful, deliberate, and premeditated. Accordingly, we find count 1 should not be classified as first degree attempted murder in the abstract of judgment, because defendant pled guilty to attempted murder that was not willful, deliberate, and premeditated.

DISPOSITION

The superior court clerk is directed to correct the abstract of judgment to reflect that defendant did not plead guilty to first degree attempted murder in count 1; rather, that he pled guilty to attempted murder that was not willful, deliberate, and premeditated. The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^* Judge Morris is a retired judge of the former San Bernardino Municipal Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

¹ All further statutory references are to the Penal Code unless otherwise indicated.

² In his appellants opening brief and his errata letter, defendant refers to an attorney by the last name of Murphy, who gave defendant advice. We find no reference in the reporters transcript that defendant was represented by an attorney named Murphy. Defendant was represented at the plea proceedings by Attorney Dorr; at the hearing on March 8, 2006, by Attorney OConnor, specially appearing for Mr. Dorr; at the hearing on the motion to withdraw the plea by Attorney Brown; and at sentencing, defendant was again represented by Attorney Dorr.

³ Defendants contention regarding the abstract of judgment was raised for the first time in his errata letter/supplemental letter brief. The letter was filed and served prior to the filing of the respondents brief; however, the People did not address the contents of the letter.