Filed 7/31/14 P. v. Fife 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059395

v.                                                                       (Super.Ct.No. RIF1201401)

MICHAEL FIFE,                                                            OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Jan B. Norman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana

Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Michael Fife appeals from a judgment of conviction after

he pled guilty to robbery (Pen. Code, § 211)1 and admitted that he had a prior conviction

under the “Three Strikes” Law. (§ 667, subds. (b)-(i).) Defendant argues that his plea

was the result of ineffective assistance and that the trial court erred in denying his motion

to withdraw his plea. (§ 1018.) We disagree, and affirm the judgment.

                              STATEMENT OF THE CASE2

       Defendant was charged by felony complaint with robbery and petty theft with

three priors, a felony. (§ 666, subd. (a).) The complaint also alleged that defendant had

served two prior prison terms within the scope of section 667.5, subdivision (b);

suffered a prior “serious felony” conviction (§ 667, subd. (a)); and that the latter

conviction was a “strike.” This conviction was for battery with serious bodily injury.

(§ 243, subd. (d).)




       1   All subsequent statutory references are to the Penal Code.

       2  Because defendant entered his plea before the preliminary hearing could be
held, the facts of the case are not ascertainable from the record.



                                              2
         The felony plea form executed by defendant indicated that the maximum term for

the charges and allegations involved was 10 years.3 (§ 1192.7, subd. (c)(8).) Had the

serious felony enhancement and the two prior prison terms remained in play, the

maximum would have been 13 years.4 The agreed term offered to defendant was six

years.

         Some six weeks later, defendant moved to withdraw his plea on the basis that his

original attorney, Jeffrey G. Moore, had erroneously advised him that the battery

conviction was a “strike,” but that defendant had now been informed that the allegation

was “defensible” and therefore wished to go to trial.

         The motion was supported by an affidavit by Attorney Moore which stated, in

essence, that he originally recognized that a conviction under section 243,

subdivision (d), was not automatically a strike5 and intended to “research the matter

further.” However, he left the law firm representing defendant before satisfying himself




         3
         The triad of possible punishments for second degree robbery is two, three, or
five years, and the term selected would be doubled due to the “strike.” (§§ 213,
subd. (a)(2); 667, subd. (e)(1).)

         4
         This assumes that the trial court could have imposed all enhancements, but
could not have imposed the upper term without violating the “dual use” rule. Our record
does not indicate whether other aggravating factors beyond defendant’s criminal history
existed.

         5
         Such a conviction becomes a serious felony under a “catch-all” provision in
section 1192.7, subdivision (c)(8), if the defendant “personally inflicts great bodily injury
on any person, other than an accomplice.”


                                              3
as to whether the conviction was provable as a strike. He informed the attorney taking

over defendant’s case that he was not entirely sure on the point.

       A year later, Attorney Moore returned to the law firm and again began

representing defendant. The second attorney told Moore that the battery conviction was

indeed a strike, but that attorney was actually relying on her incomplete recollection of

what Moore had told her; she had not independently researched the conviction. But in

the meantime, Moore’s advice to defendant about the six-year offer was predicated on the

belief that the strike was valid.

       Attorney Moore then stated that he had now reviewed documents from the earlier

case, including the probation report and plea transcripts, and formed the opinion that “the

[section] 243[, subdivision] (d) conviction which is alleged as a strike in this case cannot

be proven as such by the District Attorney.” This was presumably based upon “the

current state of the law regarding proof of a [section] 243[, subdivision] (d) conviction as

a strike offense and the permissible bounds of use of the record of conviction in

presenting such proof.” He related that defendant had “told me that he would not have

entered into the plea bargain in this matter had I advised him of these issues at the time of

the plea negotiations.” No declaration by defendant himself was submitted.

       The motion came before the court on the date set for sentencing. The court

indicated that it had reviewed the transcript and plea form relating to defendant’s plea in

the battery case and from that concluded that the conviction did, in fact, constitute a




                                              4
strike. Implicitly determining that defendant had therefore received accurate advice, it

denied the motion and proceeded to sentencing in accordance with the plea bargain.

       The reporter’s transcript from the 2005 hearing reflects that the court informed

defendant that the People charged “that you did willfully and unlawfully use force upon

the person of a Robert Bleese, inflicting serious bodily injury.” Defendant responded by

saying “Yes, sir,” and then, prompted by the court, entered a formal plea of guilty.

                                       DISCUSSION

       It is now well-established that a criminal defendant is entitled to the effective

assistance of counsel during plea negotiations and relating to whether or not a plea

bargain should be accepted. (Lafler v. Cooper (2012) 566 U.S. __, 132 S.Ct. 1376, 1384;

Hill v. Lockhart (1985) 474 U.S. 52, 56-60; In re Alvernaz (1992) 2 Cal.4th 924, 933.)

“Effective assistance” is measured by the familiar standard: was counsel’s performance

deficient, and did any errors or omissions prejudice the defendant—in this context, did

they lead to the decision to enter a plea of guilty? (Hill v. Lockhart, supra, at pp. 58-59;

In re Alvernaz, supra, at p. 934.)

       A defendant seeking to withdraw his plea bears the burden of establishing his or

her right to withdraw the plea by clear and convincing evidence. (People v. Breslin

(2012) 205 Cal.App.4th 1409, 1416.) We review for abuse of discretion. (People v.

Fairbank (1997) 16 Cal.4th 1223, 1254.)

       First, as the Attorney General points out, there is no direct competent evidence

that defendant would have rejected the offer if he had been properly advised. All the



                                              5
court had before it was the hearsay recital in counsel’s declaration. On the other hand, if

the alleged “strike” was not valid, the maximum defendant would have faced would have

been seven years.6 We may therefore assume that defendant would have elected to go to

trial had he known that his plea would only net him one year under the maximum.

       However, defendant has failed to show deficient performance. He has failed to

show that the People could not have proved that the battery conviction was a “strike.”

       As noted above, the conviction was a “strike” if defendant personally inflicted

serious bodily injury upon a person other than an accomplice. As the trial court noted,

in 2005 defendant expressly admitted having inflicted such harm, with the reasonable

implication that he did so personally. (“[Y]ou did willfully and unlawfully use

force . . . .”) Nothing in the record suggests that the victim was an accomplice. While it

is true that the People would have borne the burden to prove this element (see In re

Richardson (2011) 196 Cal.App.4th 647, 652), the appellate record does not establish that

it would not have been possible to do so. Although neither the felony plea form nor the

reporter’s transcript from 2005 demonstrates that the victim was not an accomplice, the

complete record in that case was not before the trial court—and is not before this court.

       This is not a case in which the appellate court is asked to determine whether there

was sufficient evidence that a prior conviction was a strike. (E.g., People v. Valenzuela

(2010) 191 Cal.App.4th 316, 321-323.) Because defendant admitted that he had suffered

       6The upper term for the robbery, plus two one-year prior prison term
enhancements. If the conviction was not for a serious felony, no five-year enhancement
would have been available.


                                             6
a strike, the People had no obligation to produce any evidence about the prior conviction.

Rather, it was up to defendant to demonstrate that the entire record from the 2005 case

did not contain facts supporting the position that the victim was not an accomplice. The

limited excerpts from the 2005 record do not require this conclusion.7

       Defendant argues that he did carry his burden because Attorney Moore’s

declaration includes the statement that he had by then formed the opinion that “the

[section] 243[, subdivision] (d) conviction which is alleged as a strike in this case cannot

be proven as such by the District Attorney” based upon “the current state of the law

regarding proof of a [section] 243[, subdivision] (d) conviction as a strike offense and the

permissible bounds of use of the record of conviction in presenting such proof.” With all

due respect, we find that it would be wholly inappropriate for us to take the word of

counsel as dispositive of this appeal, without having any opportunity to review the

correctness of his opinion.

       Accordingly, defendant failed to establish that the advice given by counsel in

discussing the six-year offer was erroneous. The trial court acted well within its

discretion in denying the motion to withdraw the plea.




       7  We realize that we may be setting things up for a duplicative petition for writ of
habeas corpus if in fact the 2005 record would not permit a finding that the victim was
not an accomplice. Defendant submitted a request for judicial notice of the entire record
in that case. We denied the request, which did not contain the matter to be noticed, but
invited defendant to “resubmit the request along with copies of the requested documents,
or accompanied by an explanation as to why producing the copies is not feasible.”
Defendant did not do so. Hence, we are limited to the record before the trial court.


                                             7
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               RAMIREZ
                                                         P. J.
We concur:



RICHLI
                       J.



MILLER
                       J.




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