People v. Padilla CA5

Filed 10/13/21 P. v. Padilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080878 Plaintiff and Respondent, (Super. Ct. No. 1489412) v.

LEO ANGEL PADILLA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy A. Leo, Judge. Martin Baker for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Peña, J. and DeSantos, J.

Defendant Leo Angel Padilla pled no contest to robbery. He failed to appear for sentencing and was arrested approximately three years later. After he was arrested, his postconviction counsel filed a motion to withdraw his no contest plea. That motion was denied. He contends on appeal that his postconviction counsel was ineffective for failing to file a declaration from his former counsel in support of his motion to withdraw his no contest plea. The People disagree. We affirm. PROCEDURAL SUMMARY On July 9, 2015, the Stanislaus County District Attorney filed a complaint charging defendant with robbery (Pen. Code, § 211;1 count 1). The complaint further alleged defendant had served four prior prison terms (§ 667.5, subd. (b)). On June 2, 2016, defendant pled no contest to count 1 and admitted the prior prison term allegations. As part of the plea agreement, defendant entered into a Cruz2 waiver, whereby he was released on his own recognizance and the trial court indicated it would impose the two-year mitigated term and allow defendant to withdraw the prior prison term allegation admissions if he returned to court for sentencing. The trial court advised defendant that if he failed to appear for sentencing, he was subject to a maximum sentence of nine years (the aggravated term of five years for robbery, plus 4 one- year prior prison term enhancements) and could be charged with a separate offense for failing to appear. On August 11, 2016, defendant failed to appear at the sentencing hearing. On the same date, the trial court issued a “no bail” warrant for defendant’s arrest. On August 25, 2019, defendant was arrested on an unrelated matter. On January 7, 2020, defendant filed a motion to withdraw his June 2, 2016, no contest plea. On January 28, 2020, the trial court denied defendant’s motion to withdraw