Filed 4/29/14 P. v. Bishop CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059860

v.                                                                       (Super.Ct.No. FWV1103216)

ANDRE DEPREE BISHOP,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash,

Judge. Affirmed.

         Loleena H. Ansari, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.
                                             I

                             STATEMENT OF THE CASE

       On December 19, 2011, an information charged defendant and appellant Andre

Depree Bishop with corporal injury to a spouse/child’s parent under Penal Code1 section

273.5 (count 1). The information also alleged that defendant was on bail when he

committed the current offense under section 12022.1.

       On March 5, 2012, defendant was late to court; he was immediately placed into

custody with bail set at $200,000. Defendant was offered a plea agreement with a waiver

under People v. Vargas (1990) 223 Cal.App.3d 1107, to plead guilty to count 1 and admit

the enhancement violation in exchange for a two-year term in state prison. Defendant

was advised to appear for his hearing on July 1, 2012 or he would be found in violation

of the Vargas agreement and receive a six-year term in state prison. Defendant accepted

the plea agreement offer, pled guilty to count 1 and admitted the enhancement. Defense

counsel did not join in the plea due to the potential consequences of the Vargas waiver

and the strength of a possible defense. The court then sentenced defendant to a total term

of six years consisting of the upper term of four years on count 1, to run consecutive to

the lower term of two years on the bail enhancement. The court accepted defendant’s

Vargas wavier and released defendant on his own recognizance. The court ordered

defendant to appear for re-sentencing on July 16, 2012.




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

                                             2
       On July 16, 2012, defendant failed to appear in court for re-sentencing and the

court issued a bench warrant. On October 29, 2012, defendant filed a motion to withdraw

his plea. On November 5, 2012, defendant amended the motion to withdraw the plea to

include an oral transcript of the guilty plea and sentencing hearing. Defendant argued

that he was under duress to accept the plea bargain because he had to balance his right to

go to trial with his duty to provide for his family. On November 9, 2012, the prosecution

filed an opposition to the motion to withdraw the plea. The court denied defendant’s

motion on November 19, 2012.

       On December 4, 2012, the court found that defendant was in violation of the

Vargas waiver. Hence, the court was no longer bound by the plea agreement. The court

sentenced defendant to the upper term of four years on count 1, and the lower term of two

years for the bail enhancement, to run consecutive. The court awarded a total of 300 days

of presentence credits, 150 actual and 150 conduct.

       On October 3, 2013, a constructive notice of appeal, which we authorized, was

filed. On October 16, 2013, the court granted defendant’s request for a certificate of

probable cause.

                                             II

                               STATEMENT OF FACTS2

       Defendant and the victim had been dating for approximately 16 years and have

two children together. On December 10, 2011, while released from custody on bail in

       2      The parties stipulated to a factual basis based on the police reports during
the change of plea hearing.

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another case, defendant and the victim were involved in an argument. That night,

defendant had gone out with friends. When he returned home, he turned on the victim’s

bedroom lights and started to talk to her. The victim became upset and yelled at

defendant to let her sleep. Defendant pushed the victim to the chest with both of his

hands, causing the victim to fall back and hit her face on the bed post. The victim told

defendant to leave and called 911. When Officer Marc Simpson arrived, he noticed that

the victim had redness and swelling around her right eye. The victim did not want to

press charges against defendant for battery.

                                               III

                                        ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. On April 7, 2014, defendant filed a six-page typewritten brief. In his brief,

defendant essentially argues that (1) the trial court erred in denying his motion to

withdraw his plea; and (2) his counsel rendered ineffective assistance of counsel (IAC).

       First, we address the denial of his motion to withdraw. A guilty plea is valid as

long as the record affirmatively shows it is voluntary and intelligent under the totality of

circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 361.) A guilty plea is voluntary

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and intelligent when (1) it is made with the advice of competent counsel; (2) the

defendant was made aware of the nature of the charges against him; (3) the plea was not

induced by harassment, improper threats of physical harm, coercion, or

misrepresentations; and (4) there is nothing to show the defendant was incompetent or

otherwise not in control of his mental faculties. (Brady v. United States (1970) 397 U.S.

742, 750-756.)

       Section 1018 provides, in pertinent 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.” “To establish good cause, it

must be shown that defendant was operating under mistake, ignorance, or any other

factor overcoming the exercise of his free judgment. [Citations.] Other factors

overcoming defendant’s free judgment include inadvertence, fraud or duress.

[Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “The general rule is

that the burden of proof necessary to establish good cause in a motion to withdraw a

guilty plea is by clear and convincing evidence. [Citations.]” (Id. at p. 1207.)

       We review an order denying a motion to withdraw a guilty plea for an abuse of

discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) If substantial evidence

supports the trial court’s order denying a motion to withdraw a guilty plea, that decision

must be upheld on appeal. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917-918.)

We adopt the trial court’s factual findings to the extent they are supported by substantial

evidence. (Fairbank, at p. 1254.) Thus, a plea “resulting from a bargain should not be



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set aside lightly and finality of proceedings should be encouraged. [Citations.]” (People

v. Hunt (1985) 174 Cal.App.3d 95, 103.)

       Here, it appears that defendant is arguing that he was coerced into entering a guilty

plea because he was late to the hearing on March 5, 2012, and only had “minutes to

confer with [his] thoughts and family needs[,]” while he “was heavily medicated on

various pain pills, medical marijuana, and alcohol.”

       At the hearing to withdraw, defense counsel Martinez testified; she represented

defendant when he accepted the plea agreement. Martinez stated that on the date

defendant pled guilty, she met with him. While discussing the plea offer from the

prosecutor, she told defendant that the Vargas waiver was a bad idea. However, because

defendant was in custody at that time because of his failure to appear, she informed

defendant that he would need to pay the bail at $200,000 to get out of custody. She

recalled advising defendant to wait and think about his case and set up a preliminary

hearing instead of taking the plea offer. She explained to defendant “that 90 percent of

the time the Vargas waiver is detrimental to the client, then it’s always something.

Because there’s not really not any excuse for missing that date or – he had been late on a

previous occasion. He had been late on that particular day, and I explained to him that if

he is late again for any reason, whatever the excuse would be, that that would still be the

maximum he would get on the Vargas waiver. It’s always a bad idea.”

       During Martinez’s cross-examination, she stated that she neither noticed any

alcohol on defendant’s breath nor anything unusual about his pupils. She also did not

notice anything about defendant’s behavior that day that would indicate that he was under

                                             6
the influence of any drugs. She noted that he was coherent and responsive. Defendant

never informed Martinez that he did not want to take the plea agreement.

       After defense counsel argued defendant’s case – extreme duress and under the

influence of controlled substances and alcohol – the trial court noted that it could not

“find anything remotely connected to duress in this plea.” The court stated that there was

nothing at the taking of defendant’s plea that showed that defendant “had any reluctance

of the deal at all. Every question that I asked him he answered that he wanted to do it.

Nowhere in the transcript did I ever have to stop and have any kind of discussion - - there

was - - it’s my recollection and by the, I believe borne out by the transcript, there was

never anything in his body language or his comments that for a second made me question

his deal. [¶] I was extremely concerned as you saw in the transcript, I’m not going to go

over it again, with him doing the Vargas waiver because of this here today, these type of

consequences, but you’re asking me to make a finding that I believe - - while you’re

asking me in good faith, it’s not based on any evidence before the Court. The only

evidence before the Court is that [defendant] doesn’t want to go to prison for six years.

That’s the evidence before the Court, because there’s nothing to suggest he was ever

unhappy with [the plea agreement].” The court, therefore, denied defendant’s motion to

withdraw the plea.

       Based on the above, we find that the trial court did not abuse its discretion by

denying defendant’s motion to withdraw his plea as there is ample evidence that

defendant’s plea was entered into knowingly and intelligently, unhindered by any drug

use, and with adequate representation by counsel. Defendant signed the plea agreement

                                              7
and initialed that he was entering into the agreement with full understanding of the

agreement. At no time during the taking of the plea did defendant express any confusion

with the deal. Based on the record, defendant entered into the plea agreement with full

understanding of its terms and conditions.

       Next, we address defendant’s IAC claim. In order to establish a claim of IAC,

defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell

below an objective standard of reasonableness under prevailing professional norms, and

(2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable

probability’ that, but for counsel’s failings, defendant would have obtained a more

favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to

undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th

468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668;

accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two

components: deficient performance and prejudice. (Strickland v. Washington, supra, at

pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v.

Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If

defendant fails to establish either component, his claim fails. When a claim of ineffective

assistance is made on direct appeal, and the record does not show the reason for counsel’s

challenged actions or omissions, the conviction must be affirmed unless there could be no

satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)

       In this case, defendant appears to be claiming that Martinez rendered IAC because

she divulged “attorney/client privileged communication” when she informed the court

                                              8
that defendant was running late to court because of childcare issues. At the hearing in

question, after the case was called to order and defendant was not present, defense

counsel Martinez tried to explain why defendant was late for the proceeding. She stated:

“There was some problem with child care this morning. They only have one vehicle in

the family, while the reporting party in this matter, apparently they’re still together, so

because they have to both be here, they’re both ordered to be here and only have one

vehicle. They had to wait for someone to take care of the child before they leave.

Apparently, they couldn’t find anybody, so they had to bring the child with them. The

child is in the hallway.” The reason Martinez informed the court of this communication

was to explain defendant’s delay in getting to the court. There is nothing in this

statement to the court to indicate that the communication made to Martinez was

privileged. The only reason for defendant to have informed his counsel of this situation

was for her to communicate this with the court to explain his tardiness. This

communication by Martinez does not make her performance in representing defendant

“deficient.” Even if it could possibly be deemed deficient, this did not prejudice

defendant in any way. Defendant was late to his court date. This communication

explained defendant’s tardiness. Had defense counsel Martinez not mentioned

defendant’s reason for being late, nothing would have changed. In fact, a review of the

record indicates that defense counsel Martinez rendered defendant with effective

representation. She encouraged defendant to not take the plea offer because she found

Vargas waivers to be detrimental to her clients. She asked defendant to think things over

and set a preliminary hearing. Notwithstanding her advice, defendant decided to accept

                                              9
the plea offer. Based on the record, there is nothing to indicate that the performance of

defendant’s counsel was deficient in that it fell below an objective standard of

reasonableness under prevailing professional norms. Defendant’s IAC claim fails.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                            IV

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               RICHLI
                                                                                            J.

We concur:


RAMIREZ
                        P. J.


MILLER
                           J.




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