Filed 10/1/13 P. v. Garcia 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F065296
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF137956A)
                   v.

RONNIE NEIL GARCIA,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
       Appellant, Ronnie Neil Garcia, pled no contest to residential robbery (Pen. Code,
§ 212.5, subd. (a))1 and admitted a personal use of a firearm enhancement (§ 12022.5,
subd. (a)).
       On appeal, Garcia contends: 1) the court abused its discretion when it denied his
motion to withdraw plea; and 2) the imposition of a $240 restitution fine violates ex post
facto principles.2 We will find merit to this last contention and modify the judgment
accordingly. In all other respects, we affirm.
                                          FACTS
       On July 30, 2011, P.A. reported to Bakersfield police officers that at
approximately 6:30 a.m. she was awakened by knocking on her front door and the
doorbell ringing. P.A. opened the door and saw Garcia, a friend of her ex-boyfriend,
standing there. P.A. became very scared because a year earlier Garcia raped her and she
did not report the rape because he threatened to kill her if she called police. Garcia
entered the house and told her he wanted her television, that his life depended on it, and
that he would return it the following day. After P.A. refused, Garcia pulled out a revolver
and pointed it at her. He also placed his arm around her neck and began squeezing while
whispering in her ear, “My life depends on it and you don‟t care. You don‟t want me to
use this gun.” Garcia then had P.A. go into her bedroom. P.A. walked out of the
bedroom a short time later and saw Garcia in the living room and another suspect
carrying her television away. P.A. also noticed that her telephone and computer were

1      All further statutory references are to the Penal Code.
2      In his opening brief, Garcia also contended that the matter should be remanded for
an “on-the-record judgment and sentencing” because the reporter‟s transcript of his
sentencing hearing includes only the portion of the hearing during which the court heard
Garcia‟s motion to withdraw plea and not the actual sentencing itself. This argument is
moot because the missing portion of the reporter‟s transcript of Garcia‟s sentencing
hearing was filed in this court on January 30, 2013, and on February 21, 2013, this court
granted Garcia‟s motion to withdraw this argument.



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missing. In a second statement to police later that day, P.A. stated this incident actually
occurred on July 29, 2011, at 11:30 p.m., and that she originally lied about the time
because she was “deathly” afraid of Garcia.
       When Garcia was arrested on August 6, 2011, he denied any involvement in the
incident and claimed he did not know P.A.
The Motion to Withdraw Plea and Sentencing
       On August 9, 2011, the district attorney filed a complaint charging Garcia with
residential robbery (count 1), child endangerment (count 2/§ 273a, subd. (a)),
participating in a criminal street gang (count 3/§ 186.22, subd. (a)), and being a felon in
possession of a firearm (count 4/§ 12021, subd. (a)(1)). The complaint also alleged a
gang enhancement in count 1 (§ 186.22, subd. (b)(1)), a use of a firearm enhancement in
count 1 (§ 12022.53, subd. (b)) and count 2 (§ 12022.5, subd. (a)), and two prior prison
term enhancements (§ 667.5, subd. (b)).
       On November 15, 2011, the court granted the prosecutor‟s motion to amend
count 1 to allege a firearm use enhancement pursuant to section 12022.5, subdivision (a).
Garcia then pled no contest to the robbery charge in count 1 and admitted the firearm
enhancement in that count in exchange for the dismissal of the remaining counts and
allegations and a stipulated term of nine years. Garcia was represented by Public
Defender Timothy Blenner during the change of plea proceedings.
       On January 19, 2012, the court granted Garcia‟s Marsden3 motion and appointed
the Indigent Defense Program to represent Garcia.
       On January 23, 2012, Garcia appeared with retained counsel Brian McNamara.
       On April 17, 2012, McNamara filed a motion to withdraw plea on Garcia‟s behalf.
       On June 15, 2012, Garcia filed a second motion to withdraw plea, alleging Garcia
was denied the effective assistance of counsel in entering his plea because Attorney
3      People v. Marsden (1970) 2 Cal.3d 118.



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Blenner did not use an investigator to assist in Garcia‟s defense, he did not return calls
from Garcia or Garcia‟s family members, and he did not provide Garcia with any
“paperwork” or discovery. The moving papers also alleged that Garcia suffers from
affective mood disorder and receives Supplemental Security Income (SSI) benefits, that
he should have been accommodated with more time to consider the plea offer, and that
this negated a finding that his plea was free and voluntary. The motion did not have any
declarations or other evidence attached.
       On June 27, 2012, at a hearing on the motion, Garcia testified that from August 6,
2011, to the date he entered his plea, he met with Attorney Blenner outside the court only
twice, each time at the Lerdo Facility. The first meeting occurred the day before his
arraignment and lasted only a few minutes. During that meeting Garcia told Blenner
about his witnesses and he asked Blenner who would be called. The following day
Blenner spoke with Garcia one or two minutes at court and he told Garcia only that the
purpose of the hearing was for Garcia to plead guilty or not guilty.
       The second meeting with Blenner at Lerdo lasted only five to ten minutes. During
that meeting Blenner told Garcia he could not find any of Garcia‟s witnesses and that it
did not look good for him. Garcia had not given Blenner any information on the
witnesses other than their names because he did not “remember a couple of things.”
However, after that meeting, he tried calling Blenner, but was unable to get through.
Garcia also called some family members, made a three-way call with them to Blenner,
and left a message. Additionally, he had family members call Blenner on their own and
leave messages. Garcia wanted to contact Blenner so Blenner would meet with him and
to ask Blenner to send someone to get a video. Garcia was unsuccessful in contacting
Blenner, but left messages for him. Garcia believed his witnesses would be “very
helpful” to his case, but he did not explain how.
       On the day he entered his plea, Blenner told Garcia that if he did not accept the
plea offer he would lose at trial. Blenner kept telling him that he had to take a deal for an

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arming enhancement and a robbery and that would “make all the other charges go away.”
Garcia replied that he did not want to “sign a deal for a gun.” Garcia took the plea
bargain because Blenner could not find any of his witnesses and Blenner told him that if
he went to trial he would lose. Garcia did not have any contact with the witnesses he was
looking for prior to accepting his plea deal.
       Garcia also claimed that Blenner never went over the police report with Garcia
and that Blenner only provided Garcia a copy of the report when Attorney McNamara
replaced him. Garcia further testified that his brother was the payee for SSI benefits he
had been receiving since he was 18 years old but he did not know why he received the
benefits.
       On cross-examination, Garcia testified he gave Blenner the first and last names of
three witnesses: Ronnie Flores, Mike Landers, and Gina Provencio, and that Blenner
already knew the last name and address of P.A., the complaining party. Garcia also gave
Provencio‟s address to Blenner and he told Blenner he believed Landers was in custody
in another part of the Lerdo Facility. Garcia also wanted Blenner to get a store video that
allegedly showed that “they” were at the store at the time that he allegedly robbed the
victim.
       Garcia acknowledged that Blenner spoke to him at least three times about his plea
and that he told Garcia he was facing 30 years or more. Blenner also conveyed an offer
of 16 years, which Garcia refused. Garcia also acknowledged that Blenner went over the
change of plea form with him and that Garcia initialed the form and put his thumbprint on
it.
       Blenner testified for the prosecution that he visited Garcia twice at the Lerdo
Facility, met with him twice through a video conference system that is set up between the
facility and Blenner‟s office, and met with Garcia three times at the court on hearing
dates. At Lerdo, Blenner reviewed the police report with Garcia, went over the charges,
and discussed how the pre-preliminary and preliminary hearings would proceed. Blenner

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next met with Garcia after the pre-preliminary hearing when he discussed with him that
no offer had been made and that Blenner had not yet been provided with a gang packet.
During these meetings Garcia mentioned a witness named Mike Landers but he did not
provide Blenner with Landers‟s name or contact information until the day Garcia was
sentenced. Blenner did not recall if Garcia called him, but Blenner spoke with his mother
on the phone and in court.
       During his meetings with Garcia, Blenner would discuss the strengths and
weaknesses of Garcia‟s case and the chances of getting an acquittal. He also discussed
with Garcia the 16-year offer. Garcia had indicated he would accept a seven-year term
but that counteroffer was rejected by the prosecutor. On the day Garcia entered his plea,
Blenner discussed with Garcia the nine-year offer by the district attorney; Garcia asked
Blenner to discuss it with his mother. Blenner then spoke with Garcia‟s mother in the
hallway and she told him to relay to Garcia that she thought he should accept the offer.
When they filled out the change of plea form, Garcia appeared to understand its contents
as they went over it.
       Blenner gave Garcia a copy of the initial police report and he reviewed the report
and the gang packet with him multiple times. Blenner did not use an investigator prior to
Garcia entering a plea because Garcia had not provided enough information to warrant
one. Garcia mentioned a store video to Blenner, but he did not provide enough
information to determine the store he was talking about.
       In denying Garcia‟s motion to withdraw plea, the court stated that it found Blenner
credible. The court also found that Garcia did not provide Blenner with enough
information to investigate and locate witnesses, that Garcia provided the name of only
one potential witness, he did not provide the witness‟s full name until the day he was
sentenced, and that Garcia‟s disability did not affect his ability to understand the change
of plea form or the change of plea proceedings.



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       The court then sentenced Garcia per his plea agreement to an aggregate nine-year
term, the aggravated term of six years on his robbery conviction and a mitigated three-
year term on the arming enhancement. The court also imposed a $240 restitution fine
(§ 1202.4, subd. (b)), and a corresponding $2404 parole revocation fine (§ 1202.45).
                                      DISCUSSION
The Motion to Withdraw Plea
       Garcia contends Attorney Blenner provided him ineffective representation by his
failure to conduct an adequate investigation prior to allowing Garcia to enter a plea.
Thus, according to Garcia, the court abused its discretion when it denied his motion to
withdraw his plea. We disagree.
       Section 1018 provides, in part: “On application of the defendant at any time
before judgment ..., the court may, ... for a good cause shown, permit the plea of guilty to
be withdrawn and a plea of not guilty substituted.... This section shall be liberally
construed to effect these objects and to promote justice.” The defendant has the burden
to show, by clear and convincing evidence, that there is good cause for withdrawal of his
or her guilty plea. (Ibid.; People v. Nance (1991) 1 Cal.App.4th 1453, 1457.) “A plea
may not be withdrawn simply because the defendant has changed his mind.” (Nance,
supra, at p. 1456.) The decision to grant or deny a motion to withdraw a guilty plea is
left to the sound discretion of the trial court. (People v. Fairbank (1997) 16 Cal.4th 1223,
1254; Nance, supra, at p. 1457.) “A denial of the motion will not be disturbed on appeal
absent a showing the court has abused its discretion.” (Nance, supra, at p. 1456.)
“Moreover, a reviewing court must adopt the trial court‟s factual findings if substantial
evidence supports them.” (Fairbank, supra, at p. 1254.)



4    Section 1202.45 requires that the parole revocation fine be imposed in the same
amount as the restitution fine.



                                             7.
       “The pleading—and plea bargaining—stage of a criminal proceeding is a critical
stage in the criminal process at which a defendant is entitled to the effective assistance of
counsel guaranteed by the federal and California Constitutions.” (In re Alvernaz (1992) 2
Cal.4th 924, 933.) Accordingly, ineffective assistance of counsel may constitute good
cause for withdrawal of a guilty plea. (Id. at p. 934 [“where ineffective assistance of
counsel results in the defendant‟s decision to plead guilty, the defendant has suffered a
constitutional violation giving rise to a claim for relief from the guilty plea”].) However,
“in order successfully to challenge a guilty plea on the ground of ineffective assistance of
counsel, a defendant must establish not only incompetent performance by counsel, but
also a reasonable probability that, but for counsel‟s incompetence, the defendant would
not have pleaded guilty and would have insisted on proceeding to trial. [Citation.]” (Id.
at p. 934.) “A defendant‟s statement to that effect is not sufficient. Rather, there must be
some objective showing. [Citation.]” (In re Vargas (2000) 83 Cal.App.4th 1125, 1140.)
       “[T]he reasonableness of a tactical decision at trial invites scrutiny as to whether
that decision was an informed one, that is, whether it was preceded by adequate
investigation and preparation. (See, e.g., Strickland v. Washington [(1984)] 466 U.S.
[668,] 690-691 [„[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel‟s judgments.‟] .…)”
(In re Jones (1996) 13 Cal.4th 552, 564-565.)
       Here, the court found Attorney Blenner‟s testimony credible. Further, Blenner
testified he met with Garcia several times before Garcia entered his plea, that he

                                             8.
discussed the case, the police reports and the gang package with him, and that he
communicated the district attorney‟s offers to Garcia and Garcia‟s counteroffer, which
was rejected, to the district attorney. During these meetings, Garcia advised Blenner of
only one potential witness, Mike Landers. However, prior to Garcia entering a plea, he
did not provide Blenner with Landers‟s full name, any information how to locate him, or
what relevant information Landers could provide. Garcia also mentioned a store video,
but he did not provide Blenner with enough information to identify the store where the
video was located or the significance of the video. Accordingly, we reject Garcia‟s
contention that defense counsel provided ineffective representation by his failure to
conduct an adequate investigation of his witnesses and the above noted store video.
       Garcia also failed to show he was prejudiced by defense counsel‟s alleged lack of
investigation because he did not testify that he would not have entered his plea but for
Attorney Blenner‟s alleged deficient performance or provide any objective evidence to
that effect. Further, it follows from Garcia‟s failure to show he was denied the effective
assistance of counsel in entering his plea that the court did not abuse its discretion when it
denied his motion to withdraw plea.
The Restitution Fine
       Effective January 1, 2012, section 1202.4 was amended to increase the minimum
restitution fine from $200 to $240. (§ 1202.4, subd. (b)(1), as amended by Stats 2011,
ch. 358, § 1, p. 3759.) Garcia contends that since he committed his offense before the
effective date of this amendment, the imposition of a minimum restitution fine of $240
violates ex post facto principles. Thus, according to Garcia, his restitution fine of $240
and the corresponding $240 parole revocation fine should be reduced to $200.
Respondent concedes and we agree.
       “A restitution fine qualifies as punishment for purposes of the prohibition against
ex post facto laws. [Citations.]” (People v. Saelee (1995) 35 Cal.App.4th 27, 30.)
Hence, the 2012 increase in the minimum restitution fine and the corresponding increase

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in the parole restitution fine cannot be applied to a defendant like Garcia, whose offense
was committed before the effective date of the amendment.
                                     DISPOSITION
       The restitution fine and the corresponding parole revocation fine are reduced to
$200. The trial court is directed to prepare an amended abstract of judgment that is
consistent with this opinion and to forward a certified copy to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.




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