California Court of Appeal Mar 26, 2014 No. D063803Unpublished
Filed 3/26/14 P. v. Hernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, D063803
Plaintiff and Respondent,
v. (Super. Ct. No. JCF29322)
GUILLERMO HERNANDEZ CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, William D.
Lehman, Judge. Affirmed.
Law Office of Patrick M. Ford, Patrick M. Ford, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala G. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and
Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Guillermo Hernandez Cervantes appeals from a judgment of the trial
court entered after he pled no contest to one count of selling, transporting, or offering to
sell a controlled substance, in violation of Health and Safety Code section 11352,
the obligations of appellate courts in reviewing claims of ineffective assistance of
counsel: ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a "strong
presumption that counsel's conduct falls within the wide range of professional
assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions'
[citation], and we have explained that 'courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are
generally not deemed reversible, and counsel's decisionmaking must be evaluated in the
context of the available facts.' [Citation.]" ' [Citation.]" (Montoya, supra, 149
Cal.App.4th at p. 1147.) " 'Competent counsel is not required to make all conceivable
motions or to leave an exhaustive paper trail for the sake of the record. Rather,
competent counsel should realistically examine the case, the evidence, and the issues, and
pursue those avenues of defense that, to their best and reasonable professional judgment,
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seem appropriate under the circumstances. [Citation.]' [Citation.]" (Montoya, supra,
149 Cal.App.4th at pp. 1147–1148.)
"To establish prejudice, '[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.' [Citations.] 'A reasonable probability is a probability
sufficient to undermine confidence in the outcome.' [Citation.] In demonstrating
prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable
reality," not simply speculation as to the effect of the errors or omissions of counsel.'
[Citation.]" (Montoya, supra, 149 Cal.App.4th at p. 1147.)
In the context of a guilty plea, the " ' "prejudice," requirement . . . focuses on
whether counsel's constitutionally ineffective performance affected the outcome of the
plea process. In other words, in order to satisfy the "prejudice" requirement, the
defendant must show that there is a reasonable probability that, but for counsel's errors,
he [or she] would not have pleaded guilty and would have insisted on going to trial.' "
(People v. Breslin (2012) 205 Cal.App.4th 1409, 1419 (Breslin), quoting Hill v. Lockhart
(1985) 474 U.S. 52, 59.)
A court does not have to address both components of the ineffective assistance
inquiry if the defendant makes an insufficient showing on one. (Strickland, supra, 466
U.S. at p. 697.) Specifically, "a court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the
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ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed." (Ibid.)
Cervantes admits that he cannot establish that he was prejudiced by his counsel's
purportedly deficient performance, arguing that "it is difficult to establish prejudice for
the ineffective assistance of counsel claim . . . because no one can presently determine
whether a defense motion to quash or traverse would have been successful." We agree
with this assessment. The only evidence that Cervantes presents in support of his
position that he was prejudiced is his own self-serving declaration. In that declaration,
Cervantes claims, "If I had known that there was a basis for challenging the search of my
residence in this case, I would have told my counsel to go forward with that motion . . . ."
Cervantes does not contend that he would not have entered a no contest plea and agreed
to a five-year sentence if he had known that there was a basis for challenging the search.
A defendant's self-serving declaration is insufficient on its own to establish a basis
for withdrawing a guilty plea on the ground of ineffective assistance of counsel (cf. In re
Alvernaz (1992) 2 Cal.4th 924, 938 [a defendant's self-serving statement that he or she
would have accepted a proffered plea bargain if provided competent advise must be
corroborated independently by objective evidence]). Further, Cervantes has made no
showing that the identity of the confidential information would have been helpful to him,
even if it had been revealed. Cervantes claims in his declaration only that he would have
sought to go forward with the motion to challenge the search warrant. Since there is no
showing that a challenge to the search warrant might have been successful, or that
Cervantes would not have agreed to enter a no contest plea if he had known there was a
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possibility of challenging the search warrant, Cervantes cannot establish that his
attorney's conduct affected the outcome of the plea process. (See Breslin, supra, 205
Cal.App.4th at p. 1419.)
Because Cervantes cannot establish that he suffered prejudice from his counsel's
alleged failure to investigate the confidential informant, we need not address the other
element of his ineffective assistance of counsel claim. (See Strickland, supra, 466 U.S. at
p. 697.)5
5 Cervantes also would have had difficulty establishing the other prong of a claim of ineffective assistance of counsel, i.e., that his first attorney's performance was deficient. As the district attorney stated on the record in the trial court, defense counsel is not required to filed a suppression motion each time the Hobbs procedure is used, and the policy of the district attorney's office is to increase the terms of a plea offer if a motion to traverse or quash a warrant is denied. The record does not demonstrate that Cervantes's trial counsel did not consider this and/or weigh other considerations in deciding whether to move to traverse the search warrant to seek the identity of the confidential informant. Given the " 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' [citation]" (People v. Vines (2011) 51 Cal.4th 830, 876), it is unlikely that Cervantes would have been able to meet his burden to demonstrate that his counsel's performance was deficient. 9
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant failed to establish prejudice resulting from his trial counsel's alleged failure to investigate the reliability of a confidential informant, as required to support a claim of ineffective assistance of counsel.
Issues
Whether trial counsel rendered ineffective assistance by failing to investigate the reliability of a confidential informant prior to the defendant's plea.
Whether the defendant demonstrated prejudice sufficient to set aside his no contest plea based on ineffective assistance of counsel.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Cervantes cannot establish that his attorney's conduct affected the outcome of the plea process.”
“Because Cervantes cannot establish that he suffered prejudice from his counsel's alleged failure to investigate the confidential informant, we need not address the other element of his ineffective assistance of counsel claim.”