Filed 1/23/14 P. v. Garfield 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F066818
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. PCF254693)
                   v.
                                                                            ORDER MODIFYING OPINION
DAVID LUIS GARFIELD,                                                        [NO CHANGE IN JUDGMENT]

         Defendant and Appellant.


THE COURT*
         It is ordered that the opinion filed herein on January 8, 2014, be modified as
follows:

                1. On page 2, in the first paragraph of the opinion beginning “David Luis
         Garfield,” any references to “Garcia” within that paragraph are to be changed to
         “Garfield.”

         There is no change in judgment.

                                                                   _______________________________
                                                                                   Cornell, Acting P.J.


*        Before Cornell, Acting P.J., Gomes, J. and Hoff, J.†
†     Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
Filed 1/8/14 (unmodified version)




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F066818
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. PCF254693)
                   v.

DAVID LUIS GARFIELD,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Elisabeth
Krant, Judge.
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.




*        Before Cornell, Acting P.J., Gomes, J. and Hoff, J.†
†     Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
                                           -ooOoo-
       David Luis Garfield was charged with several crimes in a 10-count indictment that
included several enhancements. He pled guilty to four counts and one enhancement for
an agreed-upon term of 14 years in prison. Before sentencing, Garcia moved to withdraw
his plea, asserting newly discovered evidence provided good cause for doing so within
the meaning of Penal Code section 1018.1 The trial court denied the motion and
sentenced Garcia to the agreed term. Garcia argues the trial court abused its discretion in
denying his motion to withdraw his plea. We find no abuse of discretion and affirm the
judgment.
                      FACTUAL AND PROCEDURAL SUMMARY
       Garfield was charged with two counts of robbery (§ 211), two counts of
conspiracy to commit a robbery (§§ 182, subd. (a)(1), 211), two counts of assault with a
firearm (§ 245, subd. (a)(2)), transportation of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a)), possession of methamphetamine for the purposes of sale
(id., § 11378), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and receiving
stolen property (Pen. Code, § 496, subd. (a)). One count of robbery, conspiracy, and
assault with a firearm arose out of an incident that occurred on July 5, 2011. The second
count of robbery, conspiracy, and assault with a firearm arouse out of an incident that
occurred on July 7, 2011. The transportation, possession, evading, and receiving stolen
property charges arose out of the pursuit and arrest of Garfield as he was trying to escape
following the July 7, 2011, robbery. A large quantity of methamphetamine and money
from the second robbery was found in his possession when he was apprehended. The two


       1All   statutory references are to the Penal Code unless otherwise stated.


                                              2.
robbery counts also charged Garfield with personally and intentionally discharging a
firearm within the meaning of section 12022.53, subdivisions (b) and (c). The
transportation and possession counts also alleged the amount of methamphetamine
exceeded 28.5 grams within the meaning of section 1203.073, subdivision (b)(2).
       Prior to the preliminary hearing, Garfield pled no contest to the two robbery
counts, the transportation count, and the evading a peace officer count for an agreed term
of 14 years in prison. On the first robbery count (July 5, 2011, incident), Garfield agreed
to plead no contest pursuant to People v. West (1970) 3 Cal.3d 5952 to the charge and the
People dismissed both firearm enhancements. On the second robbery charge (July 7,
2011, incident) Garfield pled no contest to the robbery and admitted the firearm use
enhancement, and the People dismissed the firearm discharge enhancement. The
sentence on the first robbery count was imposed concurrently with the sentence on the
second robbery count.
       Since Garfield entered a plea, we take the following facts from the probation
report, which apparently were obtained from the police reports. On July 7, 2011, two
Hispanic males robbed a convenience store. Both were armed and one subject discharged
his firearm to obtain the compliance of the victim. The perpetrators obtained cash, a
bank envelope, and the victim’s wallet.
       A short while later, officers attempted to stop a suspicious vehicle. The vehicle
accelerated and led officers on a high-speed chase, which eventually ended when the
driver stopped the vehicle. Garfield and his minor cousin were the occupants of the
vehicle. Inside the vehicle officers found bags from the convenience store containing
cash and methamphetamine. Garfield and his cousin matched the description of the
perpetrators provided by the victim, including the clothing worn by the perpetrators.
Garfield admitted possessing the methamphetamine for sale but denied committing the

       2A  West plea is a no contest plea with the defendant not admitting a factual basis
for the plea exists. (In re Alvernaz (1992) 2 Cal.4th 924, 932 (Alvernaz).)


                                             3.
robbery. Garfield’s cousin, however, admitted he and Garfield had committed the
robbery. Security video of the July 5, 2011, robbery suggested the same perpetrators
committed both robberies.
       Prior to sentencing, Garfield filed a motion to withdraw his plea. The trial court
denied the motion and sentenced Garfield to the agreed-upon term of 14 years. Garfield
filed a notice of appeal, and the trial court granted his motion for a certificate of probable
cause to challenge the order denying his motion to with draw his plea.
                                       DISCUSSION
       Section 1018 permits a defendant to move to withdraw his plea for good cause at
any time before judgment is entered. A no contest plea is treated the same as a guilty
plea for the purposes of section 1018. (People v. Rivera (1987) 196 Cal.App.3d 924,
926-927.) To establish good cause, a defendant must show by clear and convincing
evidence that his plea was the result of mistake, ignorance, or any other factor
overcoming the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.)
We review a trial court’s decision to deny a defendant’s motion to withdraw his or her
plea for an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
       Garfield argues he entered his plea only because he was denied his constitutional
right to effective assistance of counsel. Counsel was ineffective, according to Garfield,
because he failed to conduct adequate investigation and locate two witnesses who would
provide exonerating testimony on his behalf. “It is well settled that 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.
[Citations.] In Hill [v. Lockhart (1985) 474 U.S. 52 (Hill)], the United States Supreme
Court applied the criteria for assessing ineffective assistance of counsel, set forth in
Strickland v. Washington (1984) 466 U.S. 668, to a claim of incompetent advice as to the
decision whether to plead guilty. The court held that in order successfully to challenge a
guilty plea on the ground of ineffective assistance of counsel, a defendant must establish


                                              4.
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.]” (Alvernaz, supra, 2 Cal.4th at p. 934.)
          Therefore, to prevail, (1) Garfield must establish that counsel was ineffective, and
(2) if counsel had acted competently, there is a reasonable probability he would have not
pled guilty and would have insisted on going to trial.
          We begin our analysis with the first part of this test, which we find dispositive.
When a defendant enters a guilty plea on 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.” (McMann v. Richardson (1970) 397 U.S. 759,
771.) “[A] defendant who pleads guilty upon the advice of counsel ‘may only attack the
voluntary and intelligent character of the guilty plea by showing that the advice he
received from counsel was not within the standards set forth in McMann.’ [Citation.]”
(Hill, supra, 474 U.S. at pp. 56-57.) Counsel is ineffective, or not competent, if his or her
conduct falls below an objective standard of reasonableness under prevailing professional
norms. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) We indulge in a strong
presumption that counsel’s actions fell within the wide range of reasonable professional
assistance. (Id. at p. 541.) This presumption does not shield counsel’s actions from
meaningful scrutiny, nor will we automatically validate challenged acts or omissions.
(Ibid.)
          Garfield is correct that the failure to conduct adequate investigation can constitute
ineffective assistance of counsel, and, if proven, is proper grounds for withdrawing a
guilty plea. (Hill, supra, 474 U.S. at p. 59.) To support his argument, Garfield presented
the declaration of his current attorney, Ken Brock, which was filed in support of a motion
to continue the sentencing hearing. Brock explained he substituted into the case after
Garfield entered his plea. Prior defense counsel informed Brock there were two potential
witnesses, D.A. and R.G., but stated he was unable to locate the potential witnesses.


                                                5.
Brock located D.P. through Garfield’s family. D.P. told Brock that Garfield was not a
party to either robbery, but he did not know anything about the charges related to the
methamphetamine. Brock was also optimistic he would be able to contact the second
witness.
       Brock’s declaration was executed on December 10, 2012. The motion to
withdraw Garfield’s plea was filed on January 30, 2013. Brock executed a second
declaration in support of the motion, but he did not present any additional information
about these two witnesses. We assume Brock was unable to speak with the second
witness or the second witness was not helpful.
       We see two issues regarding the first part of the ineffective assistance of counsel
test. The first issue is whether prior defense counsel was ineffective for failing to locate
the witness D.P. Brock did not suggest so in his declaration, and we are not able to
conclude from this record that he was ineffective. While Brock was able to speak with
D.P., there is no explanation about why prior defense counsel was unable to do so. To
establish prior defense counsel was ineffective, Garfield needed to explain that D.P. was
at all times available and prior defense counsel simply failed to contact him. From this
record, it is possible D.P. was unavailable for any number of possible reasons, and it was
impossible for prior defense counsel to do so, despite his best efforts. There is no
evidence to suggest the family had unlimited access to D.P. at all times. Accordingly, on
this record, we cannot conclude that prior defense counsel was ineffective.
       The second issue regarding the first part of the ineffective assistance of counsel
test is that Brock’s vague declaration does not provide clear and convincing evidence
D.P.’s testimony was truly exonerating. Brock simply states that D.P. would testify
Garfield was not a party to either robbery. Brock failed to explain the testimony D.P.
would give to support this conclusion. Was D.P. the actual perpetrator, a witness, or the
recipient of second hand knowledge? Was he or she with Garfield at some other location




                                             6.
when the robberies were committed, thus providing an alibi? The minimal information
provided by Brock created more questions than it answered.
       Moreover, the absence of a declaration from D.P. renders this proposed testimony
highly suspicious. If D.P. was willing to testify, he or she should have been willing to
execute a declaration that would explain his or her proposed testimony. The absence of a
declaration suggests the testimony was, perhaps, fabricated, or D.P. was not willing to
testify. In contrast, the evidence marshaled by the prosecution strongly suggested
Garfield was the perpetrator. In any event, it is abundantly clear the trial court did not
abuse its discretion in concluding there was not clear and convincing evidence (1) the
new witness was material, or (2) prior defense counsel was ineffective.
       Contrasting the facts in this case with United States v. Garcia (9th Cir. 2005) 401
F.3d 1008 (Garcia) supports our conclusion. Garcia was arrested for manufacturing
methamphetamine and a related gun charge. The charges resulted from a search warrant
of a home at which Garcia was located. The search resulted in the discovery of
equipment to manufacture methamphetamine and other related items, including several
firearms.
       Before sentencing, Garcia moved to withdraw his plea on the basis of a newly
discovered witness. This witness executed a declaration that directly contradicted the
statement of the owner of the house, who also lived in the house. The newly discovered
witness related she had lived at the house until four days before the search. The witness
asserted Garcia never lived at the house, but he would come over to the house on
occasion. The witness also noted that the day after she moved out of the house, two men
moved into the portion of the house where the firearms were located. The witness
recognized two of the seized firearms as belonging to the husband of the owner of the
house. The witness had never seen Garcia in possession of the weapons. (Garcia, supra,
401 F.3d at p. 1010.)




                                              7.
       The appellate court noted the new witness directly contradicted statements made
by the owner of the house, and also distanced Garcia from the weapons found during the
search. The appellate court concluded this evidence was “relevant evidence in Garcia’s
favor that could have at least plausibly motivated a reasonable person in Garcia’s position
not to have pled guilty had he know about the evidence prior to pleading.” (Garcia,
supra, 401 F.3d at pp. 1011-1012.) The appellate court concluded the newly discovered
evidence constituted “‘a fair and just reason’” for requesting withdrawal of his plea,
which is the standard employed in federal courts. (Id. at pp. 1013-1014.)
       The declaration in Garcia established the new witness’s identity, the foundation
for her statements, and gave specific factual statements explaining why her testimony
would benefit Garcia. Here, Garfield did not present a declaration, did not identify the
witness, and did not provide any foundation for the supposedly exonerating testimony.
These differences doomed Garfield’s motion.
                                     DISPOSITION
       The judgment is affirmed.




                                             8.
