California Court of Appeal Jun 13, 2014 No. E057684Unpublished
Filed 6/13/14 P. v. Sanchez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent, E057684
v. (Super.Ct.No. FVA1101767)
BRAULIO OROZCO SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,
Judge. Affirmed with directions.
Richard Power, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Karl T. Terp and
Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Braulio Orozco Sanchez pleaded guilty to two counts of robbery (Pen.
Code,1 § 211, counts 1 & 2), and admitted that he personally used a firearm during the
commission of the robbery alleged in count 2, within the meaning of section 12022.5,
subdivision (a). Before sentencing, defendant moved to withdraw his guilty plea
Defendant’s former attorney testified she counseled defendant to take the plea deal
rather than face his poor chances at trial and a potential sentence of more than 30 years in
state prison. She testified that she explained the plea to defendant, went through the plea
form with him, reviewed all of the waivers of his trial rights and other advisements on the
plea form with him, and told him the decision to take the plea was his. The attorney
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testified she also told defendant to take the lunch hour to think it over. She testified that
when court resumed after the lunch break, defendant did not appear to be unsure about
his decision to plead guilty. Although she thought defendant was conflicted and under
some pressure to take the plea deal, ultimately she believed defendant knowingly and
intelligently pleaded guilty, and that he was not coerced into pleading guilty.
In his own testimony, defendant claimed that during the hearing regarding his
plea, he did not understand what was going on or what rights he was waiving. He
testified that his former attorney told him to sign and initial the form, and he did as he
was told. Defendant testified that he remembered some of what the judge told him or
asked him during the plea colloquy, and he remembered some of his answers. However,
defendant testified he did not understand what was going on because he was scared and
nervous, and he answered the judge’s questions affirmatively because his former attorney
told him to do so. Defendant testified he only pleaded guilty because he did not know
what to do and because his former attorney told him that he had no other choice. He
stated that he never wanted to plead guilty and that he wanted to proceed to trial because
he felt he was innocent. He testified that he felt bullied and pressured into pleading
guilty.
Defendant did not present clear and convincing evidence that his plea was not
knowingly and intelligently made. The judge who heard defendant’s motion also took
defendant’s plea, and he was in a good position to gauge, from his observations, whether
or not defendant’s testimony was credible. (Ravaux, supra, 142 Cal.App.4th at p. 918.)
We cannot second-guess the trial court’s express findings that defendant’s testimony was
15
not credible or worthy of belief, or its implied findings that defendant’s former attorney
was a credible witness. (See People v. Ogg (2013) 219 Cal.App.4th 173, 180 (Ogg).)
And the court’s findings that defendant had a choice to go to trial, but instead knowingly
and intelligently pleaded guilty with his eyes wide open, are amply supported by
defendant’s former attorney’s testimony.
Although defendant may not have agreed with his former attorney about his
chances of succeeding at trial, defendant ultimately accepted counsel’s advice that he
accept the plea deal. “Often the decision to plead guilty is heavily influenced by the
defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood
of securing leniency should a guilty plea be offered and accepted. Considerations like
these frequently present imponderable questions for which there are no certain answers;
judgments may be made that in the light of later events seem improvident, although they
were perfectly sensible at the time. The rule that a plea must be intelligently made to be
valid does not require that a plea be vulnerable to later attack if the defendant did not
correctly assess every relevant factor entering into his decision. A defendant is not
entitled to withdraw his plea merely because he discovers long after the plea has been
accepted that his calculus misapprehended the quality of the State’s case or the likely
penalties attached to alternative courses of action.” (Brady v. United States (1970) 397
U.S. 742, 756-757; see also Breslin, supra, 205 Cal.App.4th at p. 1417.)
In sum, the record amply supports the trial court’s conclusion that defendant
understood the choice he made, that he understood what he was giving up in exchange,
and that he knowingly and intelligently pleaded guilty.
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B. The Trial Court Properly Denied Defendant’s Claims of Ineffective
Assistance of Counsel
As noted, defendant’s statutory claim that his plea was not knowingly and
intelligently entered was tied to his claim that his former attorney rendered ineffective
assistance by not properly investigating defenses and by giving defendant faulty advice to
plead guilty. Although the trial court’s findings focused on the statutory question and not
on the constitutional question, the record supports the trial court’s implied findings that
counsel did not render ineffective assistance by advising defendant to plead guilty.
Moreover, the record amply supports the trial court’s express finding that defendant’s
former attorney satisfied her duty under Padilla.
“A criminal defendant is constitutionally entitled to effective assistance of
counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington
(1984) 466 U.S. 668, 684–685 . . . (Strickland); [citations].) To show denial of that right,
a defendant must show (1) his or her counsel’s performance was below an objective
standard of reasonableness under prevailing professional norms and (2) the deficient
performance prejudiced the defendant. (Strickland, at pp. 687, 691–692 . . . [citations].)
To show prejudice, a defendant must show there is a reasonable probability that he or she
would have received a more favorable result had his or her counsel’s performance not
been deficient. (Strickland, at pp. 693–694 . . . [citation].) It is the defendant’s burden on
appeal to show that he or she was denied effective assistance of counsel and is entitled to
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relief. [Citation.] ‘[T]he burden of proof that the defendant must meet in order to
establish his [or her] entitlement to relief on an ineffective-assistance claim is
preponderance of the evidence.’ [Citation.]” (Breslin, supra, 205 Cal.App.4th at p.
1418.)
“The two-part Strickland test applies to challenges to guilty pleas based on
ineffective assistance of counsel. [Citation.] ‘Where, as here, a defendant is represented
by counsel during the plea process and enters his [or her] plea upon the advice of counsel,
the voluntariness of the plea depends on whether counsel’s advice “was within the range
of competence demanded of attorneys in criminal cases.”’ [Citation.] ‘The second, or
“prejudice,” requirement, on the other hand, 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.’ [Citation.]” (Breslin, supra,
205 Cal.App.4th at pp. 1418-1419.)
Defendant’s former attorney testified she read the police reports regarding the
robbery and read the codefendant’s confession, in which he admitted to the police that he
did everything during the robberies and that defendant was just along for the ride. She
further testified that she knew the victims in this case were no angels, and that they had
criminal records. The attorney also testified that she obtained defense funds from the
trial court and had hired an investigator to interview the victims and potential character
witnesses. However, she did not think the investigator ever actually interviewed them.
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Although she believed the codefendant’s confession might have benefited defendant at
trial, she nonetheless believed defendant might still have been found guilty as an
accomplice and that he could have faced a sentence of 36 years in state prison.
Defendant’s contrary testimony, which the trial court clearly disbelieved, was that
his former attorney only met with him on a couple of occasions and that she never
discussed possible defenses or accomplice liability with him. Defendant testified that he
told his former attorney about the victims having criminal records, that he felt he was
innocent of all the charges, and that he wanted to go to trial. Defendant’s girlfriend,
whose testimony the judge also clearly disbelieved, testified the former attorney told her
defendant had no defense and that the attorney would merely follow the lead taken by the
codefendant’s attorney. She also testified the former attorney told her the victims had no
criminal records.
As already noted, we cannot second-guess the trial judge’s express and implied
findings regarding the credibility of witnesses. (See Ogg, supra, 219 Cal.App.4th at
p. 180.) Although the judge made no express finding to the effect that defendant’s
former attorney competently represented him, the judge’s statements about the strengths
and weaknesses of the case, that he would have given the same advice to take the plea
deal, and that he believed defendant made the right choice to plead guilty, demonstrated
that the judge impliedly made such a finding. And the testimony presented at the hearing
constitutes substantial evidence to support the trial court’s implied finding. Defendant’s
former attorney exercised her professional judgment and advised defendant that,
notwithstanding his codefendant’s confession and the obvious credibility issues of the
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victims, defendant still faced an uphill battle at trial, and he would be better served by
taking the plea deal rather than facing the uncertainty of a jury trial and a potential
sentence of 36 or more years in state prison. On the record before us, we conclude this
advice was within the range of reasonableness for criminal defense attorneys. Therefore,
we hold the trial court properly concluded defendant did not establish that his attorney
provided incompetent representation when she advised him to plead guilty.
Even if we were to conclude defendant established that his former attorney’s
representation was deficient, we find no prejudice. Defendant never expressly stated,
either in his declaration or during his live testimony, that he would not have pleaded
guilty if his former attorney had competently advised him. To the extent such a statement
was implicit in defendant’s testimony, that he did not want to plead guilty and that he
only did so because his former attorney told him he had no other choice, we conclude it is
insufficient to establish prejudice under Strickland. A defendant’s “self-serving”
assertion that he or she would not have pleaded guilty had he or she received adequate
representation and advice “is insufficient in and of itself to sustain the defendant’s burden
of proof as to prejudice, and must be corroborated independently by objective evidence.
A contrary holding would lead to an unchecked flow of easily fabricated claims.” (In re
Alvernaz (1992) 2 Cal.4th 924, 938.) Because defendant presented no other evidence to
establish he would not have taken the plea deal anyway, we find no prejudice.
Finally, we hold the trial court properly rejected defendant’s claim under Padilla.
In Padilla, supra, 559 U.S. 356, the United States Supreme Court held that the Sixth
Amendment right to effective representation of counsel includes the right to be advised
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by counsel of the possible immigration consequences of a guilty plea. (Id. at p. 374.) In
Padilla, defense counsel knew his client was a lawful permanent resident but not a
citizen, and erroneously advised the defendant that his guilty plea to transporting
marijuana would have no consequence on his immigration status. (Id. at p. 359.) The
court noted that it would have been simple for counsel, who knew of his client’s
immigration status, to have discovered the dire consequences of a guilty plea merely by
looking at the federal removal statute. (Id. at pp. 368-369.) Because counsel misadvised
his client of the consequences of a guilty plea, the court concluded his representation was
deficient. (Id. at pp. 374-375.) But as the majority and concurring opinions
acknowledged, immigration statutes are not always very clear and determining a person’s
immigration status is often easier said than done. (Id. at p. 369; id. at pp. 379-380 (conc.
opn. of Alito, J.).)
Contrary to the defendant’s assertions here, the high court in Padilla did not hold
that defense counsel has a further obligation to investigate a client’s specific immigration
status and to advise the client accordingly. (See State v. Stephens (2011) 46 Kan.App.2d
853, 856 [“The Padilla Court did not . . . impose upon counsel the duty to investigate the
citizenship or immigration status of every client in a criminal case”].) As long as an
attorney advises a defendant that by pleading guilty to a felony he or she will be deported
if he or she is not a citizen of the United States, the attorney has satisfied their duty under
Padilla whether or not the attorney knows for certain that the defendant is or is not a
citizen.
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There is substantial evidence in the record that defendant’s former attorney did in
fact tell defendant and his family that, if defendant was not a citizen, he would be
deported if he were convicted or pleaded guilty, and there is substantial evidence in the
record that defendant understood deportation would be a consequence of his plea. The
trial court acted within its discretion to reject as not credible defendant’s and defendant’s
girlfriend’s contrary testimony. That defendant’s former attorney assumed defendant was
likely a naturalized citizen, based on the conflicting information she obtained from
defendant and his family, but did not investigate further to determine his immigration
status, is irrelevant. She erred on the side of caution in advising defendant that he would
be deported if he was not a citizen. Therefore, we must adopt the trial court’s express
finding that the attorney properly advised defendant of the immigration consequences of
his plea. Because the attorney acted competently pursuant to Padilla, the trial court
properly rejected defendant’s claim of ineffective assistance of counsel.4
C. Defendant Is Entitled to an Additional Day of Presentence Credit for
Actual Days in Custody
Defendant contends, and the People concede, that the trial court’s award of
presentence credit for 350 actual days in custody does not reflect that the month of
4 On the eve of oral argument, defendant submitted citations to the opinions in People v. Martinez (2013) 57 Cal.4th 555 and People v. Soriano (1987) 194 Cal.App.3d 1470, which were not discussed in the briefs. People v. Martinez was decided before the respondent’s brief was filed in this case, and People v. Soriano has been on the books for more than 20 years. Defendant has provided no explanation why he was unable to locate those citations beforehand, and we decline to consider them at this late stage. In any event, those decisions in no way alter our conclusions.
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February 2012—during which defendant was in custody—had 29 days because of a leap
year. We take judicial notice of the fact that 2012 was a leap year, and that February of
that year had 29 days. (Evid. Code, § 452, subd. (h).) The clerk of the superior court
shall correct the minutes of sentencing to reflect that defendant is entitled to an additional
day of presentence custody for actual days in custody, for a total of 351 days.
III.
DISPOSITION
The clerk of the superior court is directed to correct the minutes of sentencing to
award defendant 351 days of credit for actual days in presentence custody. As corrected,