People v. Cervantes CA5

California Court of Appeal Jul 21, 2015 No. F068098Unpublished

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Holding. The court held that the trial court did not abuse its discretion in denying a motion for a new trial based on ineffective assistance of counsel, as the defendant failed to provide objective evidence corroborating his claim that he would have accepted a plea bargain but for his counsel's misadvice. The court also directed the trial court to correct clerical errors in the abstract of judgment.

Issues

Whether the trial court abused its discretion in denying a motion for a new trial based on ineffective assistance of counsel during plea negotiations.
Whether the defendant established prejudice resulting from counsel's failure to accurately advise him of the maximum potential sentence.
Whether the abstract of judgment accurately reflects the sentence imposed by the trial court.

Disposition. Affirmed and remanded with directions.

Quotations verified verbatim against the opinion

“a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof”

“the record does not contain any objective evidence that corroborates Cervantes’s statement that he would have accepted the plea bargain if he had been properly advised of the maximum term he faced.”

Filed 7/21/15 P. v. Cervantes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F068098 Plaintiff and Respondent, (Super. Ct. No. F12908753) v.

LUIS CERVANTES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Salvatore Sciandra and Lisa M. Sciandra for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Poochigian, J.

A jury convicted appellant Luis Cervantes, in Fresno County Superior Court case No. F1208753, of three counts of second degree robbery (Pen. Code, § 211)1 and found true a personal use of a firearm enhancement (§ 12022.53, subd. (b)) in each count. On August 2, 2013, the court sentenced Cervantes to an aggregate term of 16 years four months: an aggregate term of 12 years in count 1; a consecutive, aggregate term of four years four months on count 2; a concurrent, aggregate term of 12 years on count 3; and a concurrent term of three years on his domestic violence conviction in an unrelated case (Fresno County Superior Court case No. F11907381). On appeal, Cervantes contends the court abused its discretion when it denied his motion for a new trial. Respondent contends Cervantes’s abstract of judgment does not correctly memorialize the judgment. We conclude that Cervantes’s abstract of judgment contains several errors and direct the trial court to correct them. In all other respects, we affirm. FACTS On April 21, 2012, as Alejandro Soto was driving to Del Rey with passengers Marisol Z. and her grandmother, Maria Hernandez, an SUV began following them. Soto parked his vehicle and the SUV stopped behind him. Soto got out of his vehicle, approached the driver’s window of the SUV and asked Cervantes, the driver of the SUV, what was wrong. Cervantes pointed a gun at Soto and demanded to know what he was doing there and why he was driving with his high beams on. Soto told Cervantes and his passenger that he did not want any problems. Soto got back in his vehicle and drove away. The SUV continued to follow Soto’s vehicle. Eventually, Soto stopped again and the SUV stopped in front of his vehicle. Cervantes walked over to Soto and ripped a rosary from his neck and took his watch. He also grabbed the ignition key and had Soto get out of his vehicle. As Cervantes pointed a gun at Soto, his confederate held a gun to

People v. Cervantes CA5

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