Filed 12/18/15 P. v. Montalvo CA3
                                           NOT TO BE PUBLISHED
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
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C077771

                   Plaintiff and Respondent,                                   (Super. Ct. No. CR-F-13-466)

         v.

RICHARD JUNIOR MONTALVO,

                   Defendant and Appellant.




         Defendant Richard Junior Montalvo pled no contest to two counts of continuous
sexual abuse of a child. (Pen. Code, § 288.5, subd. (a); counts 1 and 2.)1 On appeal, he
raises three contentions: the trial court erred in denying his counsel’s request for a trial
continuance (§ 1050, subd. (b)); the trial court erred in denying his motion to withdraw
his plea due to mistake and ignorance; and the plea was the result of ineffective
assistance of counsel. We disagree and affirm.



1   Undesignated statutory references are to the Penal Code.

                                                             1
                 PROCEDURAL AND FACTUAL BACKGROUND
       Defendant molested the two victims (his stepdaughters) starting when they were in
the third and fourth grade, and ending when the youngest victim was 13. He was charged
with two counts of section 288.5, subdivision (a) with a further “one strike” allegation
under section 667.61, subdivision (e)(4).
       Defendant’s Motion to Continue
       Defense counsel substituted into defendant’s case as his retained representative in
August 2013. In December, trial was set for early May 2014. In March, the trial was
continued on a defense motion to late June 2014. Four days before trial, defense counsel
filed a written motion to continue his trial; the court heard the argument the day before
trial. Defense counsel offered several grounds for the continuance. He wanted to have
the victims reinterviewed because he suspected they had recanted or had been influenced
by other family members. He explained that the victims had been visiting their older
sister in San Diego for two weeks, and a conflict had arisen between the mother and the
older sister.
       He further explained that he had had limited time to meet with defendant (who
was out on bail) because of defendant’s work schedule. Counsel had been working on
two other criminal cases and had spent the past Wednesday at a funeral. Moreover,
defendant had not yet paid him for the trial.
       Counsel also made two passing references to being unprepared. In his motion, he
wrote: “Good cause exists in that I am not prepared to proceed to trial because . . .
questions have arisen regarding the truthfulness and veracity of statements made by the
complaining witnesses . . . .” (Italics added.) At the hearing, after mentioning the
funeral, counsel said: “And in addition to -- besides everything else, and not being
prepared, [defendant’s] family retained me to represent him.” (Italics added.)
       The prosecution opposed the continuance, noting the trial date had been set over
three months ago. Defense counsel did not need to reinterview the victims as they would

                                                2
be subject to cross-examination at trial. Further, the prosecution had recently
reinterviewed the witnesses (based on defense counsel’s concerns) and represented they
had not recanted. As to defendant’s work schedule, the People noted defendant was
currently unemployed, and his schedule had not stopped him from appearing at court
dates or spending substantial time with his biological daughter.
       At the hearing, the court asked defense counsel if he was currently in trial in
Sacramento. Counsel said he was not, explaining that a potentially conflicting case had
ended with a plea. Shortly after defense counsel mentioned that he had not been paid, the
court denied the motion:

       “THE COURT: You know, we’re -- anything further here? You guys are
       all -- sort all over the board. And when I ask an attorney if you’re going to
       be setting a trial date in Superior Court, that’s it. You’re in. It’s the day
       before trial.

       “[DEFENSE COUNSEL]: I didn’t know until the day before trial for sure.

       “THE COURT: Well, the motion to continue is denied.”
       The court later added: “[G]ood cause has not been stated.”
       After its ruling, the court noted that defense counsel had not filed a witness list.
Counsel responded: “That’s right. Unless something develops during the trial and during
testimony, it will be just [defendant].” But later in the hearing--with defendant present--
counsel said: “There may be some character witnesses. I haven’t decided that yet.
Depends on how the testimony goes.”
       The Plea
       At trial, the first witness, the victims’ biological mother and defendant’s wife,
testified to discovering defendant in bed with his 13-year-old stepdaughter. The mother
saw the two moving under the covers, with the stepdaughter on top of defendant, facing
him; defendant was wearing only boxers. Defendant told the mother he was rubbing the
child’s back.


                                              3
       During a break in the mother’s testimony, defendant agreed to a plea bargain. He
would “receive at least 12 years and no more than 24 years,” and he would be sentenced
“pursuant to PC 667.6(d) because the offenses involve separate victims.” In exchange,
the one-strike enhancement was struck. The court found the plea knowing and
intelligent.
       Defendant’s Motion to Withdraw
       Three months later, defendant, through new counsel, moved to withdraw his plea
as the result of mistake or ignorance, arguing his former counsel misled him into
believing he did not have a meritorious defense. At the hearing, defendant’s former
counsel testified that he had been prepared for trial when he moved for the continuance.
He had asked for the continuance at the request of defendant and the mother, who were
hoping defendant could go back to work to pay some bills.
       Counsel also testified that he had sought a plea offer during the mother’s
testimony. The defense’s case was based on the hope that the mother and victims would
recant, change stories, or refuse to testify. However, the mother ended up testifying
persuasively to what she had said all along, which was that she had discovered defendant in
bed with her 13-year-old daughter. On the day of the plea, the victims were in court, ready
to testify, and a reinterview had shown that they had not changed their story.
       Former counsel added that the day before the plea, he obtained mental health records
from the youngest victim. Although he had hoped the records would show the victim had
been forced to lie, the records instead reflected that she had been molested. Further, a week
before trial, defendant learned that his oldest stepdaughter would testify that defendant
groped her while she was going to sleep.




                                              4
       Counsel also testified that he had discussed the plea’s terms with defendant,
explaining that the case would be referred to the probation department for preparation of
a report. In a “best-case scenario” a good probation report “would open up a slight part
of the door” to the judge rejecting the plea and a “slight chance” of running the terms
concurrently. Counsel did not indicate that was likely to occur.
       Defendant testified at the hearing on his motion to withdraw that he pled because
he believed his counsel was unprepared:

       “Q. . . . So what happens that makes you finally say, ‘I’m going to take this
       plea deal’?

       “A. Just the pressure from my parents, from [defense counsel], saying that
       ‘If we continue forward, you’re going to spend the rest of your life in
       prison.’ And after a couple of hours of this, through lunch, it started to
       sound not like that bad a deal. Four and a half years or go to trial with
       somebody who’s not ready to represent me and end up with life in prison. I
       wasn’t -- I wasn’t willing to take that chance at that time.[2]

       “[¶] . . . [¶]

       “A. [Defendant]: . . . When the Court read to me that was 12 to 24 years,
       which also [defense counsel] stated to me that that’s what it was, but then
       the low term, as I stated earlier, was six years concurrent at 85 percent and
       likely to be reduced to 66 percent, four and a half years, seemed like a
       much better deal than spending the rest of your life in prison. So I signed
       it.”


       He added that his counsel’s failure to file a witness list led him to believe his
counsel was unprepared: “We were unprepared. The Defense didn’t do their due
diligence in my opinion as far as my attorney was concerned. No witness list was my




2 Defense counsel opined that laws could change, allowing defendant to serve only 66
percent of his term before being parole eligible.

                                              5
first indication that he wasn’t ready to go to trial.” Defendant, however, talked with
counsel about potential character witnesses, including family and people he worked with.
       Defendant also testified that his father, a former corrections officer, pressured him
to accept the plea: “[H]e told me that he was deathly afraid, that he had seen more than
on one occasion people who were incarcerated in a state penitentiary in Michigan for
quite a long time on false allegation[s] of these types. And he was afraid that that could
happen to me. . . . And he just kept saying, ‘Son, I don’t want you to spend the rest of
your life in prison.’ ” Defendant added: “And knowing his background and
understanding what he did for a living, I knew that he had firsthand experience with this.
So it definitely scared me even more, swayed me.”
       Both former counsel and defendant testified that once the victims took the stand at
trial, any chance of resolving the case by plea agreement would be gone.
       The court denied the motion to withdraw, finding counsel’s representation very
competent, and noting it was “a very competent decision to settle this case.” Three
weeks later, the court sentenced defendant to two consecutive 12-year middle terms.
                                       DISCUSSION
                                               I
                    The Trial Court’s Denial of the Motion to Continue
       Defendant first contends the trial court erred in denying the continuance. He
argues the court failed to consider his counsel’s lack of preparation for trial. He further
argues (for the first time in his reply brief) that his counsel’s desire to reinterview the
victims was itself good cause for a continuance. We hold the trial court acted within its
discretion in denying the continuance.




                                               6
       A. Applicable Law
       Courts, judicial officers, and counsel owe a duty to expedite criminal proceedings
“to the greatest degree consistent with the ends of justice.” (§ 1050, subd. (a).)
Accordingly, motions to continue are disfavored and granted only on a showing of good
cause. (Ibid.; Cal. Rules of Court, rule 4.113.)
       “Whether good cause exists is a question for the trial court’s discretion.”
(People v. Doolin (2009) 45 Cal.4th 390, 450.) The court considers the benefit the
moving party anticipates; the likelihood that benefit will result; the burden on witnesses,
jurors, and the court; and whether granting the continuance will result in substantial
justice. (Ibid.)
       We review a trial court’s denial of a motion to continue for abuse of discretion.
(People v. D’Arcy (2010) 48 Cal.4th 257, 287.) Discretion “may not be exercised so as to
deprive the defendant or his attorney of a reasonable opportunity to prepare.” (People v.
Sakarias (2000) 22 Cal.4th 596, 646.) No mechanical test determines if a denial is so
arbitrary as to violate due process, rather it is determined based on the case’s
circumstances “ ‘ “particularly in the reasons presented to the trial judge at the time the
request is denied.” ’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181.) “The
party challenging a ruling on a continuance bears the burden of establishing an abuse of
discretion, and an order denying a continuance is seldom successfully attacked.
[Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 920.)




                                              7
       B. Analysis
       Here, the trial court properly denied the motion to continue. Counsel’s desire to
have the victims reinterviewed was not itself good cause.3 Nor did that desire show he
was unprepared. To the contrary, counsel’s knowledge of the case and related family
dynamics, shown at the hearing, suggests he was quite prepared.
       Similarly, nothing indicated that defendant’s unavailability rendered counsel
unprepared. Indeed, it was not even clear defendant had been unavailable: the trial date
had been set months in advance, and defendant had been unemployed for many of those
months.
       Counsel referred to two other trials he had prepared for, prior to defendant’s trial.
Nevertheless, when given the chance, counsel did not articulate that these commitments
left him unprepared for this one. Nor did he articulate that attending the funeral or not
being paid rendered him unprepared.
       Finally, counsel’s two passing references to being unprepared did not establish
that he was unprepared. Writing, “[g]ood cause exists in that I am not prepared to
proceed to trial because . . . questions have arisen . . . .” (italics added) merely expressed
counsel’s desire to pause the proceedings to reinterview the witnesses. Similarly,
counsel’s isolated statement, “[a]nd in addition to -- besides everything else, and not
being prepared, [defendant’s] family retained me to represent him” (italics added) added
nothing to his previously expressed desire to pause the proceedings to ascertain if the
victims’ trip to their sister’s house would affect their planned testimony. As we have


3 By raising this argument for the first time in his reply brief, defendant forfeits the
point. (See People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [“a point raised for the first
time [in the reply] is deemed waived and will not be considered, unless good reason is
shown for failure to present it before”].) In any event, the request to reinterview was not
good cause. The victims could be cross-examined at trial, the prosecution’s reinterview
had confirmed the victims had not recanted, and as defense counsel would later testify,
“[y]ou don’t know what witnesses are going to say until they’re here [in trial].”

                                              8
explained ante, this desire did not constitute good cause such that the trial court’s denial
of the request constituted an abuse of discretion.4
                                              II
                         Defendant’s Motion to Withdraw his Plea
       Defendant next contends the trial court abused its discretion in denying his motion
to withdraw his plea. On appeal, he argues his plea was based on: (1) a reasonable belief
that his counsel was not prepared for trial (a belief largely based on his counsel’s
statements while moving to continue); (2) a reasonable belief that his counsel had
abandoned the possibility of calling character witnesses; and (3) a reasonable, but
mistaken, belief that the court could reject his plea and sentence him to six years by
running his sentences on both counts concurrently. We hold the trial court properly
denied the motion to withdraw.
       A. Applicable Law
       Any time before judgment, the court may permit the defendant to withdraw a plea
for good cause. (§ 1018.)5 The defendant bears the burden of showing good cause by
clear and convincing evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-
1416.) “A plea may not be withdrawn simply because the defendant has changed his
mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
       Good cause exists if the defendant was “operating under mistake, ignorance, or
any other factor overcoming the exercise of his free judgment,” including inadvertence,
fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) He must also

4  In support of their argument, the People improperly cite to defense counsel’s testimony
at the motion to withdraw, including, that he “had been preparing for the trial for many
months.” Our review is limited to the facts available to the trial court at the time of its
ruling. (See People v. Hernandez (1999) 71 Cal.App.4th 417, 425 [“We may assess the
trial court’s ruling only on the facts made known to it at the time it made that ruling”].)
5 Section 1018 also applies to no contest pleas. (E.g., People v. Brown (1986)
179 Cal.App.3d 207, 213.)

                                              9
show prejudice in that he would not have accepted the plea but for the mistake. (In re
Moser (1993) 6 Cal.4th 342, 352.)
       On a motion to withdraw, the trial court is the exclusive judge of credibility.
(People v. Caruso (1959) 174 Cal.App.2d 624, 636.) It need not “accept and give
credence to the affidavits submitted in support of the motion.” (Ibid.) Nor must it
“ ‘accept as true the sworn testimony of a witness, even in the absence of evidence
contradicting it.’ ” (Ibid.)
       The decision to deny a motion to withdraw is left to the trial court’s sound
discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) On appeal, we must
adopt the trial court’s factual findings if supported by substantial evidence. (Ibid.) We
will sustain the trial court’s ruling unless the defendant demonstrates that the trial court
exercised its discretion in an “arbitrary, capricious, or patently absurd manner, resulting
in a manifest miscarriage of justice.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
       B. Analysis
       First, the evidence presented at the hearing on the motion to withdraw established
that defendant asked his counsel to move for the continuance. Thus, he could not have
reasonably believed his counsel sought the continuance because counsel was unprepared.
We similarly reject defendant’s argument that he pleaded during trial based on a
reasonable belief that his counsel had abandoned any possibility of calling character
witnesses. Defense counsel, with defendant present, expressly stated otherwise: “There
may be some character witnesses. I haven’t decided that yet. Depends on how the
testimony goes.” Moreover, defendant and counsel had discussed potential character
witnesses. Substantial evidence supports the trial court’s denial of defendant’s motion on
both of these grounds.
       Finally, by failing to raise it below, defendant forfeits his argument that his plea
was not knowing and intelligent because he reasonably, but mistakenly, believed he
might be sentenced to no more than six years. (See People v. Kaurish (1990) 52 Cal.3d

                                              10
648, 701 [an issue not raised in trial court is waived on appeal].) In moving to withdraw
his plea, defendant never argued that his sentence, under section 667.6, must consist of
two consecutive terms such that he had been misled as to the degree of the trial court’s
discretion when he entered his plea. Indeed, at sentencing as well as at the hearing on the
motion to withdraw, both trial counsel and the court appeared to believe that consecutive
sentences for multiple victim section 288.5 convictions was discretionary under section
667.6, rather than mandatory. Because the trial court did not have the opportunity to rule
on this claim, it is forfeited. Further, as we explain post when addressing defendant’s
claim that trial counsel was ineffective, the argument fails for lack of prejudice in any
event.
                                              III
                     Defendant’s Ineffective Assistance of Counsel Claim
         Defendant lastly contends that his plea resulted from ineffective assistance of
counsel. He reasons that his counsel’s performance fell below an objective standard of
reasonableness, in failing to prepare for trial, in failing to timely disclose witnesses, and
in misadvising him that the court could reject the plea agreement and impose two
concurrent six-year terms for each section 288.5 count. He argues that but for counsel’s
errors, there is a reasonable probability that he would have insisted on trial. This
contention also fails.
         A. Applicable Law
         To challenge a plea based on ineffective assistance claim, a defendant must prove
two elements: (1) “ ‘counsel’s representation fell below an objective standard of
reasonableness’ ” under prevailing professional norms, and (2) “there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” (Hill v. Lockhart (1985) 474 U.S. 52, 57, 59 [88 L.Ed.2d
203, 209-210]; In re Alvernaz (1992) 2 Cal.4th 924, 936-937.)



                                              11
       A defendant’s self-serving statement that he would have insisted on going to trial
but for counsel’s errors is not in and of itself sufficient to establish prejudice. (See In re
Alvernaz, supra, 2 Cal.4th at p. 945.) Rather, an assertion of prejudice “must be
corroborated independently by objective evidence.” (Id. at p. 938.) “ ‘In determining
whether a defendant, with effective assistance, would have accepted [or rejected a plea]
offer, pertinent factors to be considered include: whether counsel actually and accurately
communicated the offer to the defendant; the advice, if any, given by counsel; the
disparity between the terms of the proposed plea bargain and the probable consequences
of proceeding to trial, as viewed at the time of the offer; and whether the defendant
indicated he or she was amenable to negotiating a plea bargain.’ [Citation.]” (In re
Resendiz (2001) 25 Cal.4th 230, 253.)
       Prejudice has been found where misadvice substantially affects the nature of the
plea. (See People v. Johnson (1995) 36 Cal.App.4th 1351, 1355 [plea invalid where
defendant agreed to a 20-year sentence believing his maximum exposure was 38 years,
rather than 27 years]; People v. McCary (1985) 166 Cal.App.3d 1, 8 [plea invalid where
counsel failed to advise defendant that an enhancement, dismissed under the plea, could
not be applied to defendant].) But even with substantial misadvice, it must be reasonably
probable that the defendant would have rejected (or accepted) the plea. (See In re
Alvernaz, supra, 2 Cal.4th at p. 945 [no prejudice shown for substantial misadvice
regarding defendant’s maximum exposure where decision to reject plea was motivated by
a persistent and informed hope for exoneration at trial]; People v. Miralrio (2008)
167 Cal.App.4th 448, 460 [no prejudice shown where defendant rejected plea after
counsel misadvised him that his maximum exposure was 68 years, instead of 120]; Hill v.
Lockhart, supra, 474 U.S. at p. 60 [88 L.Ed.2d at p. 211] [no prejudice shown where
defendant was told he would be parole eligible after serving one- third of his term, rather
than half; a mistake that would affect plea and conviction equally].)



                                              12
       B. Analysis
       First, we are not persuaded that defense counsel was unprepared or provided
ineffective assistance by failing to timely file a witness list. As we have explained, the
record reflects that counsel was prepared, and the failure to timely file a witness list did
not fall below an objective standard of reasonableness.6 (See People v. Jones (2010)
186 Cal.App.4th 216, 235 [the “ ‘defendant must overcome the presumption that, under
the circumstances, the challenged action “might be considered sound trial strategy” ’ ”].)
Thus, neither assertion satisfies the first prong of ineffective assistance of counsel.
       Defendant’s third contention, that he was misadvised regarding the possibility of
the court running the sentences concurrently, fails for lack of prejudice.7 (People v. Mesa
(2006) 144 Cal.App.4th 1000, 1008 [“ ‘ “If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed” ’ ”].) Defendant cannot establish that but for the error he
would have insisted on going to trial.
       Defendant’s statements that he would have insisted on going to trial are self-
serving and not themselves sufficient to establish prejudice. (See In re Alvernaz, supra,
2 Cal.4th at p. 945.) Moreover, defendant’s statements are at best ambiguous as to
whether the slight chance of concurrent terms primarily motivated his plea:




6 Counsel testified that defense attorneys commonly disclose witnesses at the last
possible moment.
7 Though defendant has forfeited his misadvisement claim for purposes of challenging
the court’s finding that his plea was not based on mistake or ignorance, he may raise this
claim for purposes of arguing ineffective assistance of counsel. (See People v. Orozco
(2010) 180 Cal.App.4th 1279, 1285 [“a criminal defendant could not waive the right to
bring a claim for ineffective assistance of counsel in which he alleges ineffectiveness at
the time he was entering the plea or ineffectiveness related to advice he received
regarding the waiver”].)

                                              13
       “Q. . . . So what happens that makes you finally say, ‘I’m going to take this
       plea deal’?

       “A. Just the pressure from my parents, from [defense counsel], saying that
       ‘If we continue forward, you’re going to spend the rest of your life in
       prison.’ And after a couple of hours of this, through lunch, it started to
       sound not like that bad a deal. Four and a half years or go to trial with
       somebody who’s not ready to represent me and end up with life in prison. I
       wasn’t -- I wasn’t willing to take that chance at that time.”
       And independent, objective evidence in the record does not corroborate
defendant’s assertion on appeal that the misadvice motivated his plea. Counsel
accurately communicated the sentence range under the plea and defendant’s maximum
exposure if convicted. (Cf. In re Alvernaz, supra, 2 Cal.4th at p. 945 [“The substantial
disparity between the term of prison confinement actually faced by petitioner and the
term allegedly represented to him by his counsel, constitutes some corroborating
evidence”].) Defendant signed a written plea agreement acknowledging that his sentence
would fall between 12 and 24 years and indicating that he had not received any “promises
[to him] about what sentence the court may order.” The judge also informed defendant of
the 12-year minimum sentence at the time the court took the plea.
       Immediately prior to his plea, defendant’s hope of prevailing at trial unraveled. The
mother testified compellingly, the victims were present in court ready to testify, the mental
health records corroborated the victims’ claims, and the oldest daughter was prepared to
provide propensity evidence. Against that backdrop, it is not reasonably probable that
counsel’s misadvice regarding a “best case scenario” of concurrent terms primarily
motivated the plea. Rather, the record reflects that defendant took the plea to avoid a
probable conviction and life sentence. (See In re Resendiz, supra, 25 Cal.4th at p. 254
[finding no prejudice from a claim of misadvisement after considering the probable trial
outcome].)
       The trial court did not err in denying the motion to withdraw the plea.




                                              14
                            DISPOSITION
The judgment is affirmed.



                                          /s/
                                     Duarte, J.



We concur:



      /s/
Butz, Acting P. J.



     /s/
Hoch, J.




                                15
