Filed 3/20/14 P. v. Williams CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
          Plaintiff and Respondent,
                                                                     A140523
v.
DARNELL F. WILLIAMS,                                                 (Contra Costa County
                                                                     Super. Ct. No. 1106301)
          Defendant and Appellant.


          The People made defendant Darnell Williams a plea offer of eight years in state
prison, promising to hold that offer open until a scheduled trial readiness conference.
Two and a half weeks before the conference, however, they revoked it. Defendant
moved to enforce the offer, which motion the trial court denied, finding there was no
enforceable plea agreement and defendant had not relied on the offer to his detriment
before its revocation. On appeal, defendant contends that the trial court’s findings were
unsupported by substantial evidence. Alternatively, he contends he received ineffective
assistance of counsel because his attorney incorrectly believed the People were legally
bound to keep the offer open as promised and wrongly advised him he had until the
readiness conference to accept it. We conclude defendant’s arguments lack merit, and we
affirm.
                                                 BACKGROUND
          The Charges Against Defendant
          On July 21, 2010, defendant was taken into custody in connection with a double
shooting that occurred in Brentwood six days earlier. Following a protracted preliminary


                                                             1
hearing, the District Attorney of Contra Costa County filed an information charging
defendant with two counts each of attempted murder, shooting at an inhabited dwelling,
and assault with a firearm, all with various great bodily injury and firearm enhancements.
The matter was eventually set for a November 28, 2011 trial date, with defendant
entering two limited time waivers in the meanwhile.
       In September 2011, attorney David Cohen, who had represented defendant since
August 2010, sought to withdraw because defendant’s family was no longer able to pay
his legal fees. On defendant’s motion, the court appointed Cohen as defendant’s private
counsel at county expense. In support of the motion, Cohen represented that in the event
he was appointed, he was prepared to proceed to trial as scheduled.
       Defendant Requests Two Trial Continuances and Enters Two More Time
       Waivers
       Despite Cohen’s prior representation that he was prepared to go to trial on
November 28, in October 2011, defendant moved to continue the trial date, claiming his
attorney needed time to retain an investigator and experts, obtain outstanding discovery,
and review the preliminary hearing transcript for a possible Penal Code section 995
motion. The court granted defendant’s motion, continuing the trial to February 6, 2012,
and defendant entered a third time waiver.
       A second defense motion to continue the trial date followed in December, with
defendant this time citing a delay in receiving court authorization to pay for expert and
investigative services. The court again granted defendant’s motion, continuing the trial to
March 26, 2012. Again, defendant waived time.
       On March 13, 2012, defendant moved pursuant to Penal Code section 995 to
dismiss the first four counts of the information. The motion was set for hearing on
March 27, a day after the case was set for trial.1



       1
         Defendant subsequently withdrew the motion and filed another Penal Code
section 995 motion seeking dismissal of all six counts against him. The court ultimately
denied it.


                                              2
       Deputy District Attorney Doug MacMaster Makes an Eight-Year Offer
       A trial readiness conference was held on March 14, 2012. Cohen began by
discussing difficulties he was having obtaining discovery from the People, engaging in
the following colloquy with the court and a Deputy District Attorney:
       “MR. COHEN: Your Honor, as your Honor knows, we have had several experts
appointed to this case, trying to get ready for trial on March 26th. The problem that
we’ve had over the last several weeks is that there has not been a District Attorney
assigned to this case. [Deputy District Attorney Jill] Henderson was assigned to the case
and is no longer assigned to it.
       “I have attempted on several occasions to reach [Deputy District Attorney Doug]
MacMaster about this case to speak to him and find out who is assigned to the case; and
the reason why it’s important to have a District Attorney assigned to the case is because
there’s a number of areas of discovery—ten different areas of discovery—which are very
important that we’ve been attempting to obtain and also meet with the District Attorney
to review their files to make sure that the discovery we have is the discovery that they
have. It’s a very large case.
       “The other part of it is that we have an expert, Mr. Naris (phonetic), who is a
forensic expert who needs to examine the ammunition and the evidence in this case and
he needs the lab report; and we have been unable to speak to a District Attorney to
arrange for that meeting so that he can examine the evidence. He’s been available for
several weeks.
       “So it’s kind of a problem with my schedule in the sense that I have set aside this
time from March 26th going forward. We’re estimating this trial is going to last between
three and five weeks. On the other hand we’re in a little bit of a difficult situation
because we’re within two weeks of trial and I need the discovery and I need to meet with
the District Attorney and also examine the evidence.
       “So that’s kind of where we are. We are available; we set the time aside and we
have the staff aside to get it done.



                                              3
       “[DEPUTY DISTRICT ATTORNEY] BOLEN: Could we pass this and we could
call Mr. MacMaster and talk about a date?
       “THE COURT: More than coming back with a date, I would like somebody to
meet with Mr. Cohen and fulfill his request.
       “MR. BOLEN: That’s Mr. MacMaster; and he’s here, next door.
       “THE COURT: But if you would speak to Mr. MacMaster and tell him that the
Court would like the trial to go out on the 26th but the DA’s office has got to follow up
and provide him with the discovery immediately.
       “MR. COHEN: The problem is even if we receive all the discovery today, I don’t
know if we can go out on the 26th. I want to get it done. I want to get the
communication and I would like to get a date.
       “THE COURT: I think Mr. Bolen’s idea of speaking with Mr. MacMaster will
give you a sense of when you could set a reasonable date and then come back. We’ll call
your case again and get an appropriate date for you.”
       The case was later recalled, and this exchange occurred:
       “THE COURT: Mr. Cohen, any success?
       “MR. COHEN: Your Honor, we did actually—I had a very nice meeting with
Mr. MacMaster. He agreed with everything I was saying in terms of discovery. He is
going to assign [Deputy District Attorney] O’Connell to meet with me this week and give
me the discovery, review the file.
       “He agreed with the points I’m making and apologized for the fact that they have
been busy. What we jointly ask the Court to do is vacate the trial date. We’re both
asking for a date of September 10th for trial. That’s because of my trial schedule and the
fact that I have blocked out these weeks for this trial at this time.
       “THE COURT: All right.
       “MR. COHEN: The good news is that he made an offer today which is far more
in the ballpark of trying to get this case settled. We’re much closer than we have ever
been and that offer is being kept open until the readiness conference. And he is also open
to discussing—my client came back with an offer; we’re not that far apart.


                                               4
Mr. MacMaster is open to discussing the difference between the two of us. So I think we
actually did make a lot of progress this morning.”
       With that, the court continued the matter for a trial readiness conference on
August 29 and trial on September 10, and defendant entered a fifth time waiver.
       MacMaster Withdraws the Eight-Year Offer
       On August 10, 2012, MacMaster sent Cohen an email in which he revoked the
eight-year offer. His email explained: “When last we spoke, I confirmed that my earlier
offer in this matter, of 8 years state prison, would remain open until the August 29
readiness conference. I also told you that I would keep an open mind, should your
ballistics evidence convince me that a different offer was merited. [¶] Since then, District
Attorney Mark Peterson had directed me to revoke that earlier offer. My apologies.
Please consider my earlier offer to be revoked.”
       Cohen responded via email that day, telling MacMaster, “Plea offers and
agreements are creatures of contracts. This is not a lawful position. It is also not
appropriate prosecutorial conduct. Before we get into this, I suggest that we speak and
that you reconsider.”
       Defendant’s Motion To Compel Enforcement Of the Plea Offer
       On August 20, 2012, defendant filed a lengthy motion, captioned as follows:
“Notice of motions and motions to (A) compel the District Attorney to comply with its
eight year offer at 85%; (B) compel the District Attorney to meet with the defense with
an open mind to consider a lower offer; (C) compel the District Attorney as was
previously promised, to meet with the defense regarding discovery and to produce the
outstanding discovery prior to the meeting regarding a lower plea offer, discovery which
was promised in March, 2012 and is still outstanding after more than 2 years; (D) for
sanctions against the District Attorney both issue preclusion and monetary; (E) for a
continuance to refer this matter to the Attorney General for investigation of possible
ethical and criminal violations against District Attorney Peterson; and (F) for additional
time to file a motion with the Attorney General and the court to recuse the District



                                              5
Attorney and his office from this matter.”2 Following shortly thereafter was a defense
motion to recuse Peterson and the Contra Costa County District Attorney’s Office.
       The court continued defendant’s motions for hearing on November 15, and set
trial for November 20.
       On October 5, the People filed a consolidated opposition to defendant’s multiple
motions.
       Defendant Withdraws and Then Refiles His Motions
       On November 7, 2012, defendant moved to continue the hearing on his motions,
contending he had recently learned of conflicts within the Contra Costa County District
Attorney’s Office that were relevant to his motions. Specifically, just two months earlier,
Deputy District Attorney Henderson had filed a federal lawsuit against Peterson and the
District Attorney’s Office, alleging gender discrimination, retaliation for opposition to
discrimination and harassment, failure to take preventive action, and retaliation for
protected political activity. Henderson’s many allegations included a claim that Peterson
“interferred with her work, including making plea bargain offers in her cases, without her
knowledge or consent, which were contrary to law, the policy of the District Attorney’s
Office, and contrary to the ends of justice.” Theorizing that Peterson’s decision to
withdraw the plea offer to defendant was, at least in part, a consequence of fighting
within the District Attorney’s Office, defendant requested time to investigate the matter
further, and the court permitted him to withdraw his motions.
       Defendant refiled his combined motions on March 6, 2013, again seeking to
compel enforcement of the plea offer and recusal of Henderson, Peterson, and the District
Attorney’s Office. As to his motion to compel enforcement of the eight-year offer,
defendant argued that he had detrimentally relied on the MacMaster’s offer by entering a
time waiver and sacrificing his right to go to trial within 10 days of the March 26, 2012


       2
        In support of his motion, defendant submitted multiple declarations and exhibits.
He subsequently withdrew this initial motion and later refiled it, incorporating by
reference the declarations and exhibits filed in support of this first motion. The
supporting evidence will be detailed in conjunction with defendant’s refiled motion.

                                             6
trial date. Alternatively, he argued that if the People’s withdrawal of the offer was
allowed to stand, then he received ineffective assistance of counsel because he forwent
acceptance of the plea offer based on erroneous advice of his counsel.
       In support, defendant incorporated by reference the declarations and exhibits filed
in support of his original motion. The declarations consisted of two by Cohen, one of
which was filed under seal, and one by defendant, also filed under seal. In his
publicly-filed declaration, Cohen detailed the troubles he had experienced in obtaining
discovery from the People. He testified that at the March 14, 2012 readiness conference,
he had explained to the court his frustrations at not having the necessary discovery but
had indicated he was nevertheless ready for the March 26, 2012 trial date. He then
described the conversations he had with MacMaster the day of the conference:
       “7. I met with Mr. MacMaster in Department 1. He apologized for not returning
my calls, and for not addressing the discovery issues I had raised in my letter which he
acknowledged were meritorious. He said that he would make [Deputy District Attorney]
O’Connell available almost immediately for a face to face meeting to compare files
regarding discovery. He also said he did not have a deputy available to try this case. He
asked if I would like to settle the case, and extended an offer of 8 years at 85%. I told
Mr. MacMaster that an eight year offer was much more in the ball park of getting the
matter resolved,[3] but also said that without my reviewing the additional discovery,
without developing the expert testimony, without pursuing our Welfare and Institutions
Code Section 827 requests for several of the People’s witnesses, without a hearing on
what I believed to be important and meritorious [Penal Code] Section 995 issues, and
without the investigator completing the interviews of a number of witnesses at the party,
we were not in a position to make a full presentation to the People on March 14, 2012,
but would be in the future. In any event, I took the offer to my client. . . .



       3
        Prior to the preliminary hearing, the People suggested a prison term in the “high
teens.” After the preliminary hearing, they discussed the possibility of a 14-year
sentence.


                                               7
        “8. After the first conversation between me and Mr. Williams, I had a second
conversation with Mr. MacMaster. I advised Mr. MacMaster that we were very close at
eight years, but I asked Mr. MacMaster to consider a lower offer of five or six years in
light of the other issues which I was developing in the case, and the ones that I had
already described. Mr. MacMaster said that he would not be able to extend a lower offer
than eight years on March 14, 2012, but would be open to extending a lower offer if I
made a presentation to him after developing additional issues in the case as I had
outlined. He then made the following proposal: to continue the trial to a mutually
convenient date of September 10, 2012, to hold the eight year offer open until the
readiness conference whenever it was set, and to meet with me with an ‘open mind’ prior
to the readiness conference to consider a possible lower offer. Mr. MacMaster also told
me that while he and I had not met before, he was the supervisor and had the reputation
for being trustworthy and true to his word. After this second conversation with
Mr. MacMaster, I met with my client a second time. He followed my advice and agreed
to a limited time waiver, continuing the trial until September 10, 2012, and the readiness
conference until August 29, 2012 . . . . I put on the record the fact that the District
Attorney had extended an offer and agreed to keep it open until August 29, 2012.”
        In addition to the declarations, defendant submitted nine exhibits in support of his
motion: three letters from Cohen or his associate to the District Attorney’s Office,
chronicling defendant’s efforts to obtain discovery and detailing the 10 categories of
items Cohen believed were still outstanding; a transcript of the March 14, 2012 readiness
conference at which Cohen advised the court of MacMaster’s plea offer; copies of two of
MacMaster’s business cards, on the back of which he had memorialized his “8 yrs @
85%” offer; a May 1, 2012 letter from Henderson to Cohen advising that the People had
provided him with all discovery and canceling a discovery meeting Cohen had previously
scheduled with O’Connell; MacMaster’s email withdrawing the offer and Cohen’s
response; and notes regarding telephone messages MacMaster left for Cohen in August
2012.



                                               8
       The People’s Opposition and Defendant’s Reply
       The People opposed defendant’s motions on March 11, 2013. Representing that
defendant had “refiled essentially the same motion[]” as before, they relied on their
previously filed opposition and supporting documents. These documents included a
declaration by MacMaster in which he testified to his recollection of the events of
March 14, 2012, as follows:
       “This case initially was assigned to Deputy District Attorney Jill Henderson.
When it was coming up for its earlier trial setting on March 13, 2012, Ms. Henderson
announced she was unable to try it, since she was already engaged in the midst of another
felony trial at that time.
       “On or about March 13, 2012 I received the discovery request from attorney David
Cohen . . . .
       “On March 14, 2012 I appeared in Department No. 1 of this court in order to
manage, for the People, the cases which were set for trial . . . that week. I was aware that
Mr. Williams’ case was unlikely to proceed to trial, based upon my earlier discussions
with Ms. Henderson, and given that he had calendared a motion to dismiss, pursuant to
Penal Code section 995, for March 27, 2012.
       “That morning I had two senior prosecutors available on our Felony Trial Team:
Deputy District Attorneys Jill Henderson and Simon O’Connell. They were both
engaged in felony trials that already were underway. Given the complexity of the
People’s case against Mr. Williams, I was uncomfortable reassigning that trial to a more
junior prosecutor. Nevertheless, because the People enjoyed our statutory 10 day trail
period, and because I expected Mr. Williams to request a continuance, I was relatively
unconcerned that we wouldn’t be able to push his case out to trial, if it became necessary
to do so.
       “David Cohen, counsel for Mr. Williams, appeared in Department No. 1.
Following a brief discussion, I conveyed to Mr. Cohen the People’s 8 year state prison
term offer . . . . Mr. Cohen assured me he would convey that offer to his client, and that
he would urge his client to [accept] it. Mr. Cohen left the courtroom . . . . I assumed he


                                             9
left in order to communicate with his client and in order to convey the People’s 8 year
offer.
         “Soon thereafter, Mr. [Cohen] reappeared in No. 1. He informed me that his client
had rejected the People’s eight-year offer. He requested that I convey a lower offer. I
decline[d] to do so.
         “Mr. Cohen and I had a discussion in which we discussed both his discovery
dispute with Ms. Henderson, and his desire to have one or more forensic experts conduct
additional examination before he proceeded to trial. My vague recollection is that he
asked me if the People would object to continuing his trial. But, Mr. Cohen has a specific
recollection that I was the one who initially proposed continuing the trial. I have
insufficient confidence in my recollection to assert, with any sufficient degree of
certainty, that he is mistaken and that I am correct. Accordingly, I assume this court will
accept his representation that I was the one who initially proposed the continuance.
         “At some point during our two discussions that morning . . . I assured Mr. Cohen
that I was only too happy to continue his trial, since on that particular day I did not have a
prosecutor who could take his case to trial immediately. Nevertheless, I knew that there
would be ample time to assign a prosecutor to his trial before the People’s 10 day trail
period expired.
         “At some point during our two discussions that morning . . . Mr. Cohen and I
discussed his dissatisfaction with the amount of discovery he had received at that point.
We did not go into details. I told him that I would assign Simon O’Connell to work with
him on these issues. I did so because I anticipated that Mr. O’Connell would complete
the trial that he currently was in before Ms. Henderson could complete the trial she
currently was in.
         “After Mr. Cohen conveyed to me that his client had refused my 8 year offer,
Mr. Cohen asked me if I would keep the People’s offer open until the next readiness
conference. I agreed to do so. [¶] . . . [¶]
         “When I told Mr. Cohen that I would keep my 8 year offer open until the next
readiness conference, I did so on the assumption that Mr. Cohen and his client wanted to


                                               10
continue the case, rather than proceed to trial in March. I based that assumption, in part,
on the fact that Mr. Cohen desired to obtain more discovery, and on the fact that he
desired to conduct additional discovery before proceeding to trial.
       “I cannot recall Mr. Cohen saying anything to me, at that time, which would have
led me to conclude that his client was waiving his statutory right to proceed to trial
almost immediately, in reliance upon my willingness to keep my offer open until the next
readiness conference. . . . Mr. Cohen and his client appeared to harbor independent
reasons for seeking a continuance, despite my telling him that my two senior prosecutors
were currently in trial. It should have been clear to Mr. Cohen, from our conversation,
that I’d be able to find a prosecutor to try his client before the time ran out under Penal
Code section 1382.”
       MacMaster’s declaration also addressed the revocation of the plea offer: “At some
point in between March and August 2012, Ms. Henderson met with me and complained
to me about my eight-year offer. She felt that it was inappropriate. She urged me to
rescind it. I told her I would not. At some subsequent point in time, Ms. Henderson
apparently met with District Attorney Mark Peterson. At some point District Attorney
Mark Peterson directed me to rescind my offer to the defendant in this case. He directed
me to inform Mr. Cohen that he had told me to revoke the offer.”
       Also filed in support of the People’s opposition was a declaration of Henderson, in
which she discussed her involvement with the case, in particular her unavailability for the
March 26 trial date due to other trials, her opinion that MacMaster’s eight-year offer was
too low, her discussions with Peterson that ultimately led him to instruct MacMaster to
revoke the offer, and her handling of Cohen’s discovery dispute.
       The court also had before it a declaration by Peterson in which he stated that after
Henderson expressed her concerns to him about the eight-year offer, he reviewed the file
and met with MacMaster. According to Peterson, based on his assessment of the




                                             11
seriousness of the underlying offense and the potential exposure of life in prison, he
determined that the eight-year offer was too low.4
         Cohen responded to MacMaster’s declaration with a supplemental declaration in
which he claimed MacMaster made “a number of material misstatements and omissions”:
         “4. It was Mr. MacMaster who told me the People wished a continuance and to
avoid any discovery issues with the Court. It was Mr. MacMaster who told me he did not
have a deputy available to try the case, and that the People would be unable to comply
with their discovery obligations in a timely manner given the March 26, 2012 scheduled
trial.
         “5. It was Mr. MacMaster who brought up the 8 year at 85% offer, and who made
(a) holding the offer open until August 29, 2012; (b) the continuance of the trial until
September 10, 2012; (c) the continuance of the readiness conference until August 29,
2012; (d) a meeting with counsel at which counsel could make a presentation based upon
all of the undeveloped facts and law and completed discovery for a sentence of between
5 and 8 years at which Mr. MacMaster would keep an open mind; and (e) his willingness
to have all of this made a part of the record, a single package.
         “There was never any rejection of the 8 year offer by Mr. Williams, and I never
told Mr. MacMaster that it was rejected. Rather, when I asked if we could get something
lower than eight years, Mr. MacMaster proposed that if we were to waive our Speedy
Trial Rights, and not make an issue of discovery with the Court, that we would jointly
continue the trial and he would keep the offer open in a manner where I could attempt to
get a lower sentence. Mr. MacMaster agreed to the package, and said that he did not
have the file and he was handling the trial calendar. He was not in a position to meet
with me or agree to a sentence of less than 8 years on March 14, 2012, but he would
agree that the People would not seek a sentence of greater than 8 years at 85% at any time
prior to and including the next readiness conference, and the current 8 years offer would


         4
        Peterson’s declaration was submitted in support of an opposition by the Attorney
General to defendant’s motion to recuse the District Attorney’s Office.


                                             12
be held open until the next readiness conference. He told me he was a supervisor and his
reputation was such that he kept his word, and although we had not previously dealt with
one another, I could rely on him. He agreed to write his eight year offer of 85% on his
business card because, while he would ordinarily write the offer in his file, he did not
have his file with him in Department 1.”5
       Hearing on Defendant’s Motion to Compel
       After defendant filed his reply, his motions came on for hearing on April 3, 2013.
Following lengthy argument, the court denied defendant’s motion to enforce the plea
offer, concluding the offer “was not accepted in a reasonable time and that there’s
insufficient evidence of detrimental reliance.” The court explained:
       “I’ve reviewed the early declarations of the Defense in this regard. And the
continuance colloquy itself, which was heard before Judge Maier, nowhere is there stated
any detrimental reliance at the time of the continuance colloquy.
       “Now the Court is satisfied that the plea bargain was not accepted and is not
enforceable. Certainly the People couldn’t enforce the plea and no plea was ever entered.
       “And the Defense argument that there was a waiver of a speedy trial right isn’t
supported by the record. And now it becomes a swearing contest in the form of
declarations where Mr. MacMaster says in his declaration that there was definitely no
quid pro quo and Mr. Cohen says that there definitely was a quid pro quo.
       “But the Court finds that there’s insufficient evidence of detriment[al] reliance
based on the record before it, which is an extensive record. . . .”
       The court also found defendant’s claim that Peterson revoked the offer in bad faith
unsupported by the evidence, noting that “the Court isn’t satisfied that that is truly a
problem with the office and how it does business. All offices do business that way,
prosecutor offices, where there is a chain of command and the misdemeanor deputies
may not like it if a misdemeanor supervisor tells them to do certain things and same with

       5
       Defendant also submitted a declaration of Jason Campbell, an associate of
Cohen, who described a September 6, 2012 telephone call between MacMaster and
Cohen in which they discussed their recollections of the March 14 conversations.


                                              13
felony deputies all the way up to the District Attorney. [¶] And in this case, ultimately,
the District Attorney did file the declaration and said that in this declaration that the
matter was based on the evidence in this case and not because of Ms. Henderson’s civil
case. So given that the offer was contrary to law, Mr. Peterson’s decision is reasonable
and it’s corroborated. [¶] . . . And the Court doesn’t find that there was any bad faith
towards Mr. Williams. There’s no showing of bias on the part of Ms. Henderson or Mr.
Peterson or even Mr. MacMaster. In fact, I think all three of them were doing what they
thought was right and correct.”
       The court also rejected defendant’s ineffective assistance of counsel argument,
reasoning that the offer was either “contrary to the law” or “improper” and “that
Mr. Peterson was correct in having the offer withdrawn.”
       The court then went on to rule on defendant’s recusal motion, granting it only as to
Henderson.
       On October 9, 2013, defendant pleaded no contest to two counts of assault with a
firearm with a firearm use enhancement as to one count and two great bodily injury
enhancements as to each count, in exchange for a 12-year state prison term.
       This timely appeal followed.
                                       DISCUSSION
       The Trial Court’s Findings Regarding the Plea Offer Were Supported By
       Substantial Evidence
       Defendant presents two substantial evidence challenges to the trial court’s denial
of his motion to enforce MacMaster’s plea offer. First, he argues there was a valid plea
agreement and the trial court’s finding to the contrary was unsupported by substantial
evidence. Second, he contends the trial court’s finding that he did not rely to his
detriment on MacMaster’s promise to keep the offer open was unsupported by substantial
evidence. Neither contention has merit.
       We can readily dispose of defendant’s claim that there was a valid plea agreement.
He contends not that he accepted MacMaster’s eight-year offer—a claim no reasonable
reading of the record would support—but rather that he accepted an offer “to enter a plea


                                              14
on or before the readiness conference in exchange for a term of eight years to be served at
85% time, or better.” This claimed offer cannot be construed as an enforceable plea
bargain. A plea bargain disposes of a criminal prosecution—by defendant pleading
guilty or no contest—in exchange for a benefit to defendant, typically a more lenient
sentence or dismissal of one or more charges. (See, e.g., People v. Turner (2004)
34 Cal.4th 406, 418 [“In a plea bargain, ‘the defendant agrees to plead guilty in order to
obtain a reciprocal benefit, generally consisting of a less severe punishment than that
which could result if he were convicted of all offenses charged.’ ”]; In re Alvernaz (1992)
2 Cal.4th 924, 941; People v. Rhoden (1999) 75 Cal.App.4th 1346, 1351 (Rhoden)
[“ ‘The disposition of criminal charges by agreement between the prosecutor and the
accused[ is] sometimes loosely called “plea bargaining . . . .” ’ ”].) An alleged agreement
to enter a guilty plea to unspecified charges at a later date for a yet-to-be-determined
sentence was not a disposition of defendant’s case.
       Moreover, “[j]udicial approval is an essential condition precedent to any plea
bargain. A plea bargain is ineffective unless and until it is approved by the court.”
(People v. Cantu (2010) 183 Cal.App.4th 604, 607.) There is no evidence defendant
entered a change of plea that the court accepted.
       Defendant’s second contention—that he detrimentally relied on MacMaster’s offer
prior to its revocation—requires greater analysis. The leading case addressing the
revocation of plea offers—indeed, one of the few published California opinions on this
issue—is Rhoden, supra, 75 Cal.App.4th 1346. There, Rhoden and the prosecutor agreed
to a plea bargain pursuant to which Rhoden would plead guilty to one charge in exchange
for dismissal of a second charge. Rhoden, her counsel, and the prosecutor signed a
change-of-plea form to that effect. Later that same day, however, the prosecutor
informed the court that he was withdrawing the offer. (Id. at p. 1349.) Rhoden sought to
enforce the plea agreement, the trial court denied the request, and Rhoden appealed. (Id.
at pp. 1349–1351.)
       The Court of Appeal considered whether a prosecutor can withdraw a plea offer
before it is submitted for court approval, a question the court noted was one of first


                                             15
impression in California. (Rhoden, supra, 75 Cal.App.4th at pp. 1351–1352.) After
reviewing cases from other jurisdictions and secondary authorities, the court “adopt[ed]
the majority view that a prosecutor may withdraw from a plea bargain before a defendant
pleads guilty or otherwise detrimentally relies on that bargain.” (Id. at pp. 1353–1354;
see also People v. McClaurin (2006) 137 Cal.App.4th 241, 248 (McClaurin) [following
Rhoden]; In re Kenneth H. (2000) 80 Cal.App.4th 143, 148 [“Rhoden correctly states the
rule which should be applied in California”].) The court then elaborated on the
detrimental reliance requirement, stating, “ ‘A defendant relies upon a [prosecutor’s] plea
offer by taking some substantial step or accepting serious risk of an adverse result
following acceptance of the plea offer. [Citation.] Detrimental reliance may be
demonstrated where the defendant performed some part of the bargain. [Citation.]’ ”
(Rhoden, supra, 75 Cal.App.4th at p. 1355.)
       Defendant here asserts two theories of detrimental reliance. First, he submits he
relied to his detriment on MacMaster’s promise that the plea offer would remain open
until the readiness conference by waiving his right to a speedy trial. As he would have it,
his time waiver was part of a package in which MacMaster agreed to keep the offer open
in exchange for which defendant waived time to afford the People additional time to
prepare for trial. As defendant framed the issue below: “What is not in dispute is that the
People and Mr. Williams came to an agreement on March 14, 2012, whereby two things
were happening, Mr. Williams was waiving his statutory right to a trial within the month,
and the People agreed to keep the 8 year offer open. What is disputed is whether these
two agreements were made independently of one another, or whether this was a quid pro
quo arrangement.” The trial court rejected defendant’s claim that it was a quid pro quo
arrangement, finding instead the agreements were independent and there was thus no
detrimental reliance by defendant. We review the trial court’s finding for substantial
evidence (see McClaurin, supra, 137 Cal.App.4th at p. 250), and we conclude substantial
evidence supports the court’s conclusion.
       Perhaps most compelling is the initial exchange between Cohen and the trial court
at the March 14, 2012 readiness conference, during which exchange Cohen discussed


                                            16
continuing the trial date before he even received the offer from MacMaster. Specifically,
after Cohen complained to the court about discovery he claimed he had not received from
the People, the court told Bolen to inform MacMaster that it wanted to proceed to trial on
March 26 and that the People needed to provide Cohen with the discovery
“immediately.” At the court’s suggestion of proceeding to trial as scheduled, Cohen
objected that even if he received the discovery that day, he was not prepared for a March
26 trial and wanted to “get a date.” The court responded that “speaking with
Mr. MacMaster will give you a sense of when you could set a reasonable date and then
come back. We’ll call your case again and get an appropriate date for you.” Only after
that exchange transpired—an exchange that clearly contemplated a trial continuance to
allow for the completion of discovery—did Cohen meet with MacMaster and receive the
offer.
         Further, as of the March 14 readiness conference, Cohen was not prepared for a
March 26 trial. As defendant correctly points out, Cohen informed the court, “We are
available; we set the time aside and we have the staff aside to get it done,” and “I have
blocked out these weeks for this trial at this time,” all of which suggested he was
available if trial proceeded as scheduled. Yet never did Cohen say he was prepared for
trial, and in fact he indicated to the contrary, telling the court he was still pursuing
discovery from the People, having sent multiple letters—including one the day before the
readiness conference—detailing the 10 categories of discovery still outstanding. As he
informed the court, “[t]he problem is even if we receive all the discovery today, I don’t
know if we can go out on the 26th.”
         In addition to discovery he believed the People owed him, Cohen wanted to
conduct additional discovery himself. He informed the court his forensic expert needed
“to examine the ammunition and the evidence in this case and he need[ed] the lab report,”
all of which had to be coordinated with the District Attorney’s office. And in his initial
declaration, he detailed the work he anticipated completing, which included developing
expert testimony, pursuing Welfare and Institutions Code section 827 requests for several
of the People’s witnesses, obtaining a ruling on defendant’s Penal Code


                                              17
section 995 motion, and having his investigator interview a number of witnesses. That
Cohen was still pursuing discovery from the People and wanted to conduct significant,
additional discovery himself supports the trial court’s finding that defendant waived time
based on his independent desire for a trial continuance.
       The court’s conclusion also finds support in what was not said at the readiness
conference. As previously detailed, defendant’s case was passed and Cohen left to
converse with MacMaster, after which he returned to the readiness conference and
described his “very nice meeting with Mr. MacMaster,” a description that bears
repeating: “[MacMaster] agreed with everything I was saying in terms of discovery. He
is going to assign [Deputy District Attorney] O’Connell to meet with me this week and
give me the discovery, review the file. [¶] He agreed with the points I’m making and
apologized for the fact that they have been busy. What we jointly ask the Court to do is
vacate the trial date. We’re both asking for a date of September 10 for trial. That’s
because of my trial schedule and the fact that I have blocked out these weeks for this trial
at this time. [¶] . . . [¶] The good news is that he made an offer today which is far more in
the ballpark of trying to get this case settled. We’re much closer than we have ever been
and that offer is being kept open until the readiness conference. And he is also open to
discussing—my client came back with an offer; we’re not that far apart. Mr. MacMaster
is open to discussing the difference between the two of us. So I think we actually did
make a lot of progress this morning.” Nowhere in this detailed account of their
conversation and agreements did Cohen state that the agreements were contingent on
each other. Nowhere did he state that it was a quid pro quo—defendant’s time waiver in
exchange for the People keeping the offer open until the readiness conference. Simply
put, Cohen did not indicate it was the package deal defendant now claims it to be.
       Lastly, the fact that defendant’s Penal Code section 995 motion was set to be
heard on March 27, which was after trial was scheduled to commence, further evidenced
that Cohen did not anticipate adhering to a March 26 trial date. And it is not lost on us
that defendant had previously entered four time waivers and moved for two trial
continuances.


                                             18
       In seeking to persuade us that the trial court reached the wrong result, defendant
places heavy reliance on Cohen’s supplemental declaration, in which he testified that the
plea offer and time waiver were “a single package.” We find it significant, however, that
the first time Cohen described the offer and defendant’s time waiver as a quid pro quo
was the third time he described the agreements. Not in his statement to the court at the
readiness conference nor in his first declaration did he portray them as a package deal.
Given this, it was not unreasonable for the court to credit Cohen’s contemporaneous
description over his supplemental declaration prepared eight months later.
       And even if we were to overlook this weakness in Cohen’s supplemental
declaration, his testimony does not compel a reversal. Our task is simply to determine
whether the trial court’s finding was supported by substantial evidence. If so, we must
affirm, even if other evidence supports a contrary conclusion. (See, e.g., People v. Earp
(1999) 20 Cal.4th 826, 887–888 [evidence supporting a contrary finding does not render
evidence supporting a verdict insubstantial]; In re L.Y.L. (2002) 101 Cal.App.4th 942,
947 [appellate court will affirm juvenile court’s order if supported by substantial
evidence, even if other evidence supports contrary conclusion].) And we have detailed
the substantial evidence supporting the trial court’s finding that defendant’s time waiver
and MacMaster’s promise to keep the eight-year offer open were independent.
       The same is true of defendant’s reliance on MacMaster’s statement—both in his
March 14 conversation with Cohen and his declaration—that as of the readiness
conference, he did not have a senior prosecutor available to try the case and he was
uncomfortable reassigning the trial to a more junior prosecutor. According to defendant,
this was evidence that it was in fact MacMaster who was unprepared and wanted the
continuance, promising to keep the offer open in exchange. Again, evidence that the
People were not prepared for trial does not negate the substantial evidence that defendant
independently wanted a trial continuance. And MacMaster’s declaration disputed that the
People would have been unable to proceed to trial on March 26, as he testified that he
“knew that there would be ample time to assign a prosecutor to his trial before the
People’s 10 day trail period expired” and that “[i]t should have been clear to Mr. Cohen,


                                             19
from our conversation, that I’d be able to find a prosecutor to try his client before the
time ran out under Penal Code section 1382.”
       As a second claim of detriment, defendant contends he was deprived of the
advantage of proceeding to trial on March 26 when his attorney was prepared but the
People were not. As he describes it, “The defense was in an advantageous position at the
time of the readiness conference. The prosecution lacked experienced felony prosecutors
to try the case, and appeared unable to actually go to trial within the statutory time limit.”
We have already detailed the substantial evidence to the contrary.
       Finally, defendant makes much of Henderson’s lawsuit against Peterson and
others and the alleged conflicts in the Contra Costa County District Attorney’s Office at
the time MacMaster withdrew his offer. According to defendant, this established the
offer was revoked in bad faith. This theory fails for two reasons. First, Rhoden, supra,
75 Cal.App.4th 1346, instructs that the standard for enforcement of a plea agreement is
whether defendant detrimentally relied on the offer before its revocation. Defendant cites
no case holding that an offer will be enforced if it was withdrawn in bad faith even in the
absence of detrimental reliance by defendant. Defendant does correctly note that in
McClaurin, supra, 137 Cal.App.4th at p. 250, the court observed that in addition to a lack
of detrimental reliance, defendants had also failed to present any evidence that the
prosecutor acted in bad faith. This is a far cry from holding that the bad faith revocation
of a plea offer alone is sufficient to compel enforcement of the offer.
       But even if that were the standard, substantial evidence supports the trial court’s
finding here that the revocation was not made in bad faith. Henderson testified that when
she learned of MacMaster’s eight-year offer, she told him she believed it was too low.
As she stated in her declaration, “I felt strongly that the severity of the injuries to the
victim’s [sic] in this case warranted more than eight years . . . .” She then conveyed her
concerns to Peterson. He, in turn, testified that after Henderson expressed her concerns
to him, he reviewed the file and, based on his assessment of the seriousness of the
underlying offense and the potential exposure of life in prison, determined that the offer
was too low. This testimony was substantial evidence supporting the trial court’s finding.


                                               20
       Defendant Was Not Denied His Right to the Effective Assistance Of Counsel
       In the alternative, defendant contends that if he was not entitled to specific
performance of the plea offer, then he was deprived of effective assistance of counsel
because Cohen incorrectly advised him that the offer would remain open until the
readiness conference. This argument also lacks merit.
       To establish a claim for ineffective assistance of counsel, “defendant must show
that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2) counsel’s deficient
representation subjected the defense to prejudice, i.e., there is a reasonable probability
that but for counsel’s failings the result would have been more favorable.” (People v.
Babbitt (1988) 45 Cal.3d 660, 707; see also Strickland v. Washington (1984) 466 U.S.
668, 687–696; People v. Ledesma (1987) 43 Cal. 3d 171, 216–218.) Particularly with
regards to a plea offer, “a defendant has the right to effective assistance of counsel in
considering whether to accept it. If that right is denied, prejudice can be shown if loss of
the plea opportunity led to a trial resulting in a conviction on more serious charges or the
imposition of a more severe sentence.” (Lafler v. Cooper (2012) __ U.S. __, 132 S.Ct.
1376, 1387.) Defendant has not demonstrated Cohen’s representation was deficient.
       Defendant claims Cohen informed him the eight-year offer was “locked in” and
there was “absolutely no risk, up until August 29, 2012, of losing the eight year offer
while trying to get less time of between five and eight years.” Since this advice was
obviously incorrect, defendant posits, Cohen’s counsel was necessarily inadequate. The
circumstances here suggest otherwise. MacMaster promised he would keep the offer
open until the readiness conference, representing that he was good to his word because
“he was the supervisor and had the reputation for being trustworthy.” And it was
unforeseeable that the District Attorney would instruct MacMaster to revoke the offer.
This suggests that an objectively reasonable attorney—even one who knew the People
were not legally bound to keep the offer open as promised—would nevertheless have
advised defendant that he had until August 29 to accept the offer. We thus cannot




                                              21
conclude that Cohen’s advice to defendant fell below an objective standard of
reasonableness. (Strickland v. Washington, supra, 466 U.S. at p. 688.)
                                    DISPOSITION
     The judgment of conviction is affirmed.

                                                _________________________
                                                Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




                                           22
