Filed 2/2/16 P. v. Barker 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068620
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. MF010617-A)
                   v.

DONALD EARL BARKER,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua
and Brian M. McNamara, Judges.†
         Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Detjen, J. and Smith, J.
†      Judge Lua presided over defendant’s readiness hearing; Judge McNamara presided
over defendant’s trial and sentencing hearing.
                                   INTRODUCTION
       On November 8, 2013, a jury convicted defendant on one count of unlawful
possession of a firearm by a felon and one count of negligent discharge of a firearm in a
manner likely to cause injury or death. The trial court sentenced defendant to an
aggregate term of seven years in prison. On appeal, defendant argues his trial counsel
was ineffective for misadvising him of his maximum exposure while a plea offer was
open. We affirm.
                                         FACTS
       On September 12, 2013, an amended information was filed charging defendant
with unlawful possession of a firearm, negligent discharge of a firearm, brandishing a
firearm and brandishing a knife. The charges stemmed from a June 6, 2013, dispute
when defendant fired a handgun at a residence where approximately 80 people were
gathered for a party. After defendant waived his preliminary hearing, the People made a
plea offer of two years in prison. The offer was to remain open through the conclusion of
defendant’s readiness hearing.
       At that readiness hearing on September 20, 2013, defense counsel informed the
court that defendant had been presented with the plea offer, but had neither accepted nor
countered the offer. Upon questioning from the court, defense counsel stated that
defendant’s maximum exposure was five years eight months. Defendant rejected the
offer before the conclusion of the readiness hearing.
       On the first day of trial, the following exchange took place:
              “[DEFENSE COUNSEL]: … I believe it was September 20th, our
       readiness hearing date, I was asked what was the exposure by the Court and I
       misspoke. I said 5 years and 8 months. That was based on the original
       information filed by the district attorney’s office.
              “Subsequent to that, I spoke with [defendant] regarding his actual exposure.
       He’s fully aware. He has done at least five prison terms, and I explained to him I
       misspoke it was 5 years and 8 months. It’s actually 8 years and 8 months so I just
       want to get the record straight. I did speak with [defendant] regarding his


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       maximum exposure because apparently after -- sometime at some point the district
       attorney’s office filed an amended information and I did not calculate that with my
       maximum exposure. [¶] But I did tell him sometime immediately after
       September 20, 2013; right?
       “DEFENDANT: Yes.
       “[DEFENSE COUNSEL]: Thank you.
       “THE COURT: Are you requesting anything aside from putting this on the record
       at this time?
       “[DEFENSE COUNSEL]: I just wanted to put it on the record.
       “THE COURT: Thank you. You’re set for trial ….”
       Following the exchange, the trial court dismissed the brandishing of a firearm
charge, and the jury trial commenced. The jury found defendant guilty of the unlawful
possession of a firearm and negligent discharge of a firearm charges, but acquitted
defendant of the charge of brandishing a knife. Defendant was sentenced to an aggregate
term of seven years in prison, and this appeal followed.
                                      DISCUSSION
       Defendant argues his right to effective assistance of counsel was violated by his
trial counsel’s failure to properly advise him of his maximum exposure prior to
defendant’s denial of the People’s plea offer. We disagree.
       To establish a claim of ineffective assistance of counsel, defendant must show that
his counsel’s representation fell below an objective standard of reasonableness, and that
defendant was prejudiced by his counsel’s deficient representation. (People v. Ledesma
(1987) 43 Cal.3d 171, 216-217.)
       Here, the information in defendant’s case was amended on September 12, 2013,
eight days prior to defendant’s readiness hearing. Despite this eight-day period, defense
counsel apparently never informed defendant that his maximum exposure had increased
from five years eight months to eight years eight months. This failure, particularly during
a period of time where a plea offer was on the table, is objectively unreasonable.




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       That being said, defendant has not established prejudice. In order to establish
prejudice when counsel misadvises a defendant during plea negotiations, the defendant
“must show that but for the ineffective advice of counsel there is a reasonable probability
that the plea offer would have been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms would have been less severe than
under the judgment and sentence that in fact were imposed.” (Lafler v. Cooper (2012)
____ U.S. ____ [132 S.Ct 1376, 1385].) Further, “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 as to prejudice, and must be corroborated independently by objective
evidence.” (In re Alvernaz (1992) 2 Cal.4th 924, 938.)
       In the instant case, the sole evidence in support of defendant’s claim that he would
have accepted the plea offer is his own self-serving declaration, a similar declaration by
his girlfriend, and the objective disparity between the maximum exposure represented by
defense counsel and the maximum exposure actually faced by defendant.1 While such a
disparity provides “some corroborating evidence” for otherwise self-serving statements, it
is not dispositive. (In re Alvernaz , supra, 2 Cal.4th at p. 945.) Lacking any additional
objective evidence, we simply cannot conclude defendant has met his burden of
establishing a “credible, independently corroborated prima facie showing of a reasonable
probability that he would have accepted the plea offer but for his trial counsel’s alleged
inaccurate advice as to sentencing.” (Id. at p. 946.) Therefore, we affirm.




1      Defendant’s request for judicial notice of his habeas corpus petition and attached
declaration (In re Donald E. Barker (Aug. 22, 2014, F069927)) is granted.


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                            DISPOSITION
The judgment is affirmed.




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