Filed 9/15/15 P. v. Lopez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040913
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1345890)

         v.

CHRIS LUZ LOPEZ,

         Defendant and Appellant.

         Defendant Chris Luz Lopez seeks to withdraw no contest pleas he entered as part
of an agreement to resolve a felony complaint alleging one count of continuous sexual
abuse of a child under 14 (Pen. Code, § 288.5, subd. (a));1 six counts of lewd or
lascivious acts on a child under 14 (§ 288, subd. (a)); and a multiple victim special
allegation as to all seven counts (§ 1203.066, subd. (a)(7)). Defendant argues he was
coerced by his deputy public defender into accepting the plea agreement; the same deputy
public defender provided ineffective assistance by not advising defendant that he was
subject to lifetime sex offender registration (§ 290); his privately-retained counsel
provided ineffective assistance by not preserving and raising as a ground to withdraw his
pleas the trial court’s failure to advise regarding section 290; and that the trial court
abused its discretion by imposing a $10,000 restitution fine (§ 1202.4, subd. (b)). For the
reasons stated here, we will affirm the judgment.



         1
              Unspecified statutory references are to the Penal Code.
                         I.   TRIAL COURT PROCEEDINGS
       According to the probation report, defendant sexually touched his girlfriend’s two
daughters from a previous relationship on multiple occasions while the four of them lived
together. In February 2013, then-13-year-old Victim 1 told police that defendant had
started touching her inappropriately when she was in fourth grade. Defendant allegedly
rubbed his hand on her vagina over her clothes while lying next to her on a bed at least
two times. Then-16-year-old Victim 2 told police during a separate interview that
defendant regularly rubbed her back at bed time and that on one occasion he rubbed her
legs and vagina area over her underwear while she was lying in bed. When Victim 2 was
12, defendant allegedly pulled down his pants to expose his penis while the two were
sitting on the couch in the living room. Defendant covered his penis with one hand while
reaching under Victim 2’s shirt with his other hand and rubbing her chest. During a
police interrogation, defendant denied touching the daughters inappropriately but
acknowledged that he might have mistakenly touched or rubbed up against the daughters
when he was sharing a bed with them and their mother.
       Defendant was charged by felony complaint with one count of continuous sexual
abuse of a child under 14 years old (§ 288.5, subd. (a)) and four counts of lewd or
lascivious acts on a child under 14 years old (§ 288, subd. (a)) related to Victim 1. The
complaint alleged two additional section 288, subdivision (a) counts related to Victim 2.
As to all counts, the complaint alleged that defendant committed the violations against
more than one victim (§ 1203.066, subd. (a)(7)).
       The parties informed the trial court that they had reached a plea agreement
whereby defendant would plead no contest to the charged counts and receive a total of
eight years in state prison. When asked if defendant agreed to that deal, defendant
responded, “I guess so.” The court asked defendant if he needed more time to speak with
his attorney and defendant indicated he did not. The court also referred to a written plea
agreement and waiver of rights form defendant had signed and confirmed that the initials
                                             2
on various parts of the form were defendant’s. The court specifically inquired whether
defendant reviewed the form carefully with his attorney and defendant responded that he
had. Defendant pleaded no contest to each of the charged counts. The trial court did not
advise defendant that pleading no contest to the charged counts would require lifelong
registration as a sex offender under section 290. On the plea form, a box describing sex
offender registration was checked but defendant did not initial the box indicating he read
and understood the requirement.
       Defendant moved to withdraw his no contest pleas seven months later, arguing
that he was coerced into the agreement. The written motion, filed by private counsel
defendant retained, alleged that defendant “was subject to severe distress and the
influence of those in a position of authority at the time of his plea.” The same judge who
accepted defendant’s no contest pleas conducted an evidentiary hearing on the motion.
Defendant testified that the deputy public defender who had represented him at the plea
hearing pressured him to accept the plea agreement and told him that if he did not accept
the deal he was “looking at life” imprisonment. He said that he met with the deputy
public defender for 30 minutes before that hearing and that he argued with him about the
deal. Defendant stated he “skimmed” the plea form, that the deputy public defender did
not explain its contents to him, and that he merely signed or initialed the form wherever
the attorney told him to sign. Defendant acknowledged that he told the judge when
entering his pleas that he did not need more time and that he had gone over the form
carefully with his attorney.
       The trial court asked counsel to explain check marks that were made next to each
of the boxes on the plea form defendant was meant to initial. The prosecutor did not
attach any great significance to those marks but the private defense attorney argued they
indicated that the deputy public defender presented the form to defendant and directed
him to initial wherever there was a check mark without reading the form. The court
noted that while defendant had met with the deputy public defender for only around 30
                                             3
minutes on the day he entered his pleas, he had met with the attorney on at least three
other occasions when the attorney appeared on defendant’s behalf at other hearings. The
court stated that defendant was essentially arguing that he was not telling the truth at the
plea hearing when he told the court both that he did not need more time and also that the
deputy public defender had explained the form to him in detail. Regarding that argument,
the court explained “[t]he bottom line is I believed him then ... or I would not have taken
the plea.” The court explicitly stated “I found him credible then [but] I did not find him
particularly credible today.” Based on those findings, the court denied defendant’s
motion.
       The trial court eventually sentenced defendant to eight years in state prison,
consisting of a six-year low term for the section 288.5, subdivision (a) count and two-
years consecutive (one-third the middle term) for one of the section 288, subdivision (a)
counts related to Victim 2. The court stayed sentence on the four section 288,
subdivision (a) counts related to Victim 1 under section 654 and imposed a concurrent
six-year middle term for the remaining section 288, subdivision (a) count related to
Victim 2. Among other fines, the court imposed a $10,000 restitution fine (§ 1202.4).
Defendant objected to that fine, arguing that “he will be incarcerated for the next eight
years” and would therefore not have the ability to pay. The court responded: “It would
have been higher if you had the ability to pay, and I had the ability to do it. That’s just
the statutory formula.” Defendant obtained a certificate of probable cause, arguing that
his no contest pleas were entered under duress.
                                    II.   DISCUSSION
   A. MOTION TO WITHDRAW PLEA BASED ON DURESS
       “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.” (§ 1018.) “Mistake, ignorance or any other factor overcoming the exercise
of free judgment is good cause for withdrawal of a guilty plea.” (People v. Cruz (1974)
                                              4
12 Cal.3d 562, 566.) A defendant must establish good cause by clear and convincing
evidence. (Ibid.) In addition to good cause, a defendant must demonstrate that he or she
would not have accepted the plea bargain but for the factor overcoming the exercise of
free judgment. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) We review the
trial court’s denial of a motion to withdraw a plea for abuse of discretion, deferring to any
credibility determinations made by the trial court. (People v. Perez (2015) 233
Cal.App.4th 736, 738 and 741 (Perez).)
       Defendant argues that his deputy public defender coerced him to plead no contest
to the charged counts, leading to an involuntary plea. The fatal flaw in defendant’s
contention is that the trial court expressly found that while it had found defendant
credible when he entered the pleas, it “did not find him particularly credible” at the
hearing on his motion. We must accept the trial court’s findings that (1) defendant was
truthful when pleading no contest that he understood the plea agreement and waiver form
and did not need additional time to discuss the matter with his attorney; and (2) defendant
was not truthful in his testimony regarding his coercion claim at the motion hearing.
(Perez, supra, 233 Cal.App.4th at p. 738; Santa Clara County Correctional Peace
Officers’ Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1027
[reviewing courts defer to “ ‘ “determination of credibility of the witnesses and the
weight of the evidence.” ’ ”].)
       Defendant argues that the trial court’s reasoning was “illogical” because the court
purportedly “recognized that [defendant] did not comprehend what he was signing by
inferring that the attorney may have made the checkmarks on the plea form to indicate
where appellant should sign.” To the contrary, the trial court merely stated that it was
“consistent with defendant’s story” that the check marks could indicate places to sign.
The trial court never found that the deputy public defender failed to explain the form to
defendant or that defendant did not understand the form.


                                             5
       Defendant analogizes his case to People v. McGarvy (1943) 61 Cal.App.2d 557
(McGarvy). McGarvy was arrested on suspicion of manslaughter. McGarvy’s family
retained private counsel and informed the sheriff’s office of that fact but neither the
family nor the attorney were permitted to see him. The next morning an attorney
consulted with McGarvy at the request of the district attorney for 20 to 30 minutes and
advised him to plead guilty to manslaughter, which McGarvy did later that morning.
Three days later, McGarvy moved to withdraw the guilty plea. (Id. at pp. 558-560.)
McGarvy’s supporting declaration explained that after his arrest he had been precluded
from speaking with his family or the attorney the family had retained and “that he was
never fully advised of the seriousness of the crime nor did he understand the nature of the
proceedings ... .” (Id. at p. 559.) A declaration by the attorney who advised defendant to
plead guilty stated that the attorney “was called Tuesday morning by the district attorney
and asked if he would ‘at least talk’ to ‘a defendant charged with murder and
manslaughter,’ and that he did talk with the defendant at the county jail.” (Id. at p. 560.)
The court of appeal concluded that McGarvy should have been allowed to withdraw his
plea because the attorney who had advised McGarvy “did not represent the defendant by
virtue of an order of appointment by the court but only upon request of the district
attorney to at least talk to a defendant” and “there was undue haste in the entire
disposition of the case.” (Id. at pp. 560-561.)
       McGarvy is readily distinguishable. Defendant pled no contest three months after
his arrest. He was represented by appointed counsel who had represented him at three
previous hearings. He did not move to withdraw his plea until several months after he
pleaded no contest. And there was no mention in McGarvy of any adverse credibility
determinations like those the court made against defendant here.
   B. INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING DURESS
       Defendant argues that the trial court should have granted his section 1018 motion
because coercion by the deputy public defender rendered his pleas involuntary, violating
                                              6
his due process rights. Defendant cites Hill v. Lockhart (1985) 474 U.S. 52 (Hill), which
involved a collateral challenge to the voluntariness of a guilty plea based on erroneous
advice of counsel regarding parole eligibility. (Id. at pp. 56-57.) The Supreme Court
determined that “the voluntariness of the plea depends on whether counsel’s advice ‘was
within the range of competence demanded of attorneys in criminal cases.’ ” (Id. at p. 56.)
The court applied the two-part Strickland v. Washington (1984) 466 U.S. 668 (Strickland)
test to the challenge to a guilty plea based on ineffective assistance of counsel, meaning
that a defendant must show both deficient attorney performance and prejudice from the
deficiency. (Hill, at p. 58.)
       The trial court’s adverse credibility findings defeat any showing of deficient
performance based on duress. The record contains no evidence that defendant was
pressured to accept the plea deal other than his self-serving testimony at the section 1018
hearing, which we view through the lens of the trial court’s finding that it was not
credible. As defendant cannot show deficient performance on this record, his federal
constitutional argument fails.
   C. INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING § 290 REGISTRATION
       A trial court must advise a defendant that, as a consequence of admitting any of
the offenses enumerated in section 290, the defendant will be required to register as a sex
offender. (People v. McClellan (1993) 6 Cal.4th 367, 376 (McClellan).) Though the trial
court did not advise defendant on the record regarding the sex offender registration
consequences of his no contest pleas, defendant does not raise that issue on appeal.
Instead, defendant argues that he was denied his Sixth Amendment to the United States
Constitution right to the effective assistance of counsel because his deputy public
defender did not advise him of the registration consequences and his privately-retained
counsel did not raise the trial court’s failure to advise to support the motion to withdraw
his no contest pleas. Here again, to establish ineffectiveness of trial counsel, defendant


                                             7
must show that counsel’s performance was deficient and that he was prejudiced by the
deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)
          1. Deputy Public Defender
       Defendant argues that “reasonably competent trial counsel would have advised
[defendant] of the lifetime registration requirements under section 290” and that failure to
do so constitutes ineffective assistance. Citing McClellan and other cases regarding a
trial court’s duty to advise defendant on the record about sex offender registration,
defendant asserts that deficient performance by the deputy public defender is shown
because there is no evidence that the attorney advised defendant about section 290 on the
record. However, defendant points to no authority supporting his assertion that defense
counsel must advise a defendant about section 290 on the record. The record on appeal
does not conclusively establish that the deputy public defender failed to properly advise
defendant at some point before defendant pleaded no contest. To support that assertion,
defendant would need extra record evidence such as affidavits by defendant and the
deputy public defender regarding whether such advice was given. As the scope of an
appeal is limited to the record of the proceedings below, defendant’s argument is not
cognizable by direct appeal. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 [“An
appellant who claims to have been denied constitutionally adequate assistance of counsel
and relies on evidence outside the record may seek relief on this basis through a collateral
attack on the judgment by petition for writ of habeas corpus.”].)
          2. Privately-Retained Counsel
       Defendant contends that his privately-retained counsel provided ineffective
assistance by not raising the trial court’s failure to advise defendant about section 290
registration as an alternative ground for withdrawing his no contest pleas.
       “If a claim of ineffective assistance of counsel can be determined on the ground of
lack of prejudice, a court need not decide whether counsel’s performance was deficient.”
(In re Crew (2011) 52 Cal.4th 126, 150, citing Strickland, supra, 466 U.S. at p. 697.) To
                                              8
satisfy the prejudice prong of an ineffective assistance of counsel claim, defendant must
show a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. (Strickland, at p. 694.) A reasonable probability is one “
‘sufficient to undermine confidence in the outcome.’ ” (Ledesma, supra, 43 Cal.3d at p.
218, quoting Strickland, at pp. 693-694.) A different result means “a result more
favorable to the defendant ... .” (Strickland, at p. 695.)
       In In re Resendiz (2001) 25 Cal.4th 230 (plur. opn. of Werdegar, J.) (Resendiz),
the California Supreme Court discussed the Strickland standard in the related context of
an attorney’s erroneous advisement regarding the immigration consequences of a guilty
plea. The Resendiz plurality began by paraphrasing the prejudice standard announced in
Hill, supra, 474 U.S. at pp. 58-59: “a defendant who pled guilty demonstrates prejudice
caused by counsel’s incompetent performance in advising him to enter the plea by
establishing that a reasonable probability exists that, but for counsel’s incompetence, he
would not have pled guilty and would have insisted, instead, on proceeding to trial.”
(Resendiz, at p. 253.) Factors identified by the court relevant to that analysis 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.’ ” (Ibid., quoting In re Alvernaz (1992) 2 Cal.4th 924, 938.) “[A]n appellate
court also may consider the probable outcome of any trial, to the extent that may be
discerned.” (Resendiz, at p. 254.)
       Applying the Resendiz factors here, with the exception of the sex offender
registration requirement, defendant represented to the trial court when entering his no
contest pleas that he had gone over the plea form carefully with the deputy public
defender. The trial court later found defendant had been credible when making those
statements, leading to an inference that the deputy public defender actually and
                                               9
accurately communicated the terms of the plea agreement with defendant. The record
does not conclusively establish whether the deputy public defender informed defendant
of the sex offender registration requirements of pleading no contest or whether defendant
indicated he was amenable to negotiating a plea bargain. Comparing the plea terms and
the possible consequences of proceeding to trial does not support defendant’s argument.
Defendant received an 8-year prison sentence under the plea agreement, 20 years less
than the possible 28-year maximum were he to be convicted of all counts at trial. Faced
with that disparity and the reality that conviction at trial would require defendant to
register as a sex offender for life, we see no reasonable probability that “he would not
have pled guilty and would have insisted, instead, on proceeding to trial.” (Resendiz,
supra, 25 Cal.4th at p. 253.)
   D. RESTITUTION FINE (§ 1202.4)
       Defendant contends that the trial court abused its discretion by imposing the
maximum restitution fine under section 1202.4 despite finding that defendant did not
have the ability to pay. We review the imposition of a section 1202.4 restitution fine for
an abuse of discretion. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.)
       “In every case where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record.” (§ 1202.4, subd. (b).)
When defendant was convicted, the minimum fine for a felony conviction was $280 and
the maximum was $10,000. (§ 1202.4, subd. (b)(1).) In setting the fine, a trial court may
use a formula whereby the fine equals the minimum fine multiplied by the number of
years imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant was convicted. (§ 1202.4, subd. (b)(2).) “A defendant
shall bear the burden of demonstrating his or her inability to pay.” (§ 1202.4, subd. (d).)
A trial court is not required to make express findings regarding the factors bearing on the


                                             10
amount of the fine, nor to hold a separate hearing to determine the amount of the fine.
(Ibid.)
          The trial court stated it used the statutory formula to arrive at the $10,000
maximum fine. When defendant objected, the trial court responded that the fine “would
have been higher if you had the ability to pay, and I had the ability to do it.” 2 Defendant
interprets that statement as a finding by the court that defendant did not have the ability to
pay a restitution fine. Contrary to defendant’s interpretation, it appears the court did not
find defendant unable to pay the fine imposed but rather that the court did not believe
defendant had the ability to pay a hypothetical amount over the statutory maximum. As
for the trial court’s implicit finding that defendant had the ability to pay the statutory
maximum, defendant’s only effort to show his inability to pay was his counsel’s
statement that defendant would be incarcerated for the next eight years. That
observation, without more, did not demonstrate his inability to pay. (People v. Gamache
(2010) 48 Cal.4th 347, 409 [affirming § 1202.4, subd. (b) restitution fine when the
defendant pointed “to no evidence in the record supporting his inability to pay, beyond
the bare fact of his impending incarceration.”].) We find no abuse of discretion.
                                     III.   DISPOSITION
          The judgment is affirmed




          2
         Imposing the amount yielded by the statutory formula ($13,440, consisting of
$280 times the eight-year sentence times six felony counts) would exceed the statutory
maximum; the trial court therefore imposed the lower $10,000 amount. (§ 1202.4, subd.
(b)(2).)
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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
