Filed 3/3/16 P. v. Villa CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064320

v.                                                                      (Super.Ct.No. FVI1200312)

DARRELL RAYMOND VILLA,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

         Darrell Raymond Villa, in pro. per.; and Lizabeth Weis, under appointment by the

Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         Pursuant to a negotiated plea agreement, defendant and appellant Darrell

Raymond Villa pled guilty to continuous sexual abuse of a child under the age of 14




                                                             1
(Pen. Code, § 288.5, subd. (a)).1 Defendant also admitted that he had suffered one prior

strike conviction for a 1997 burglary (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). In

return, defendant was sentenced to a stipulated term of 24 years in state prison with credit

for time served. Defendant appeals from the judgment, challenging the validity of the

plea and admission based on ineffective assistance of counsel. We find no error and

affirm.

                                                  I

                       FACTUAL AND PROCEDURAL BACKGROUND2

          On February 2, 2012, the then 15-year-old victim reported that defendant, her

biological father, had been sexually molesting her since the age of 10. She explained that

her parents were separated, and that she spent time with her father almost every week at

his home. Beginning when she was five years old and at defendant’s house, defendant

would come into her room and sleep next to her in her bed. Around age nine, defendant

began putting his arms around her waist while they slept. Around age 10, defendant

began putting his hands inside her pants, touching her vaginal area over her underwear.

When she was about 12 or 13 years old, defendant began touching and rubbing her

vaginal area with his hand, skin-to-skin. Defendant did not touch her breasts or penetrate

her with his penis, but she described instances in which defendant placed his penis

between her legs near her vagina. At times, the victim would shove defendant away,

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

          2   The factual background is taken from the preliminary hearing.


                                                  2
retreat into her bedroom, and attempt to barricade her door to keep defendant out.

However, defendant would force his way into the room and try to apologize, telling her

she reminded him of her mother. Defendant told the victim not to tell her mother and to

keep it between them.

       During a pretext call, in which the victim called defendant and told him she was

uncomfortable with the things he was doing to her, defendant apologized for his actions.

He also told the victim that it would be okay if she needed to tell someone, but that he

would get in a lot of trouble and go to jail.

       Following a preliminary hearing, on February 4, 2014, an information was filed

charging defendant with one count of continuous sexual abuse of a child under the age of

14 years (§ 288.5, subd. (a); count 1) and one count of committing a lewd and lascivious

act upon a child (§ 288, subd. (c)(1); count 2). The information further alleged that

defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior

strike conviction for a 1997 burglary (§§ 667, subds. (b)- (i), 1170.12, subds. (a)-(d)).

       On September 22, 2014, the People dismissed the prior serious felony conviction

allegation because defendant was not sentenced to prison for that prior case. Thereafter,

defendant accepted the People’s plea offer, pled guilty to count 1, and admitted the prior

strike conviction in exchange for a stipulated term of 24 years, the middle term of 12

years doubled due to the prior strike conviction, and dismissal of the remaining

allegation. Prior to pleading guilty and admitting to the prior strike conviction, defendant

acknowledged that he had read, understood, initialed, and signed the plea agreement



                                                3
form; that he had sufficient time to discuss the charges, his rights, penalties, and future

consequences with his attorney; that he understood the constitutional rights he was

waiving; and that his credits for time served were 85 percent. Defendant also indicated

that he had not been promised anything in return for his guilty plea; that he had not been

forced or threatened into pleading guilty; and that he was not under the influence of

alcohol, drugs, medication, or anything that would impair his judgment. Defendant’s

counsel acknowledged that he had discussed the issues with defendant and that he was

satisfied defendant understood the plea. After directly examining defendant, the trial

court found that defendant read and understood the plea form; that defendant understood

the nature of the charges and the consequences of his plea; that the plea was entered into

knowingly and intelligently; and that there was a factual basis for the plea.

       On July 20, 2015, defendant filed a motion to withdraw his plea. He argued that,

even though he had been given an opportunity to confer with his family and counsel prior

to accepting the plea, he felt pressured into entering the plea and did so without a

complete understanding of the case. He further claimed that his attorney failed to provide

him with a copy of his discovery despite requesting the documents many times from his

counsel; that his counsel failed to visit him in jail to discuss the merits of the case; that

his counsel failed to consult with him and did so only briefly at court appearances; and

that he had no real understanding of the merits of the People’s case against him and what

affirmative defenses he could present. Defendant also argued that counsel had promised

him he would be eligible for half-time conduct credits pursuant to section 4019; that he



                                               4
was confused when the court asked him whether he understood his credits were

85 percent; and that his counsel had advised him to plead guilty to benefit another client.

       The People filed an opposition to defendant’s motion on August 6, 2015, arguing

defendant failed to show good cause for withdrawing his guilty plea or that his counsel

was ineffective.

       The court heard defendant’s motion to withdraw his guilty plea on August 14,

2015. At that time, defendant testified that he had been represented by attorney Gene

Bristoll for about two years and that attorney Bristoll had ignored his requests to meet

with him in jail to discuss his case and obtain copies of discovery. He further stated that

his attorney informed him he would receive 50 percent credit for time served; and that

when he asked his attorney to explain those credits, his attorney told him not to worry

about it because he would receive section 4019 credits as he had not been to prison

before. He further claimed that he was not advised he would receive 85 percent for time

served and that he did not recall initialing the box on the plea form specifying

presentence credits would be per section 2933.1. Defendant admitted that he had read in

the change of plea form that he would serve 24 years in state prison at 85 percent and that

the trial court had asked him if he understood that at the time of the plea, but claimed he

did not understand despite informing the court he did. Defendant also admitted that he

indicated to the court he had sufficient time to discuss the case with his attorney, but

stated that he felt pressured by his attorney to enter the guilty plea. Defendant also




                                              5
testified that after the plea hearing, he heard his attorney comment to the deputy district

attorney, “ ‘Now that I gave you Villa, you’ve got to give me these two other cases.’ ”

       Attorney Bristoll testified that he had discussed the consequences of the plea with

defendant several times; that during the entire length of the case, the offer had always

been 24 years; and that he had tried to obtain a lower offer for defendant. He further

stated that he had appeared with defendant at least 30 times in court; that he spoke with

defendant each time; and that he had discussed the 24-year offer with defendant.

Attorney Bristoll also explained that he had gone over the change of plea form with

defendant line by line, including that he would serve 85 percent of the sentence since it

was a serious and/or violent felony. Defendant indicated that he understood all of these

terms, and if defendant had any questions, he would have taken more time with

defendant. Attorney Bristoll further stated that defendant did not ask what kind of credits

he would receive, but he believes he conferred with defendant as indicated on the plea

form. Attorney Bristoll denied making the statement to the deputy district attorney about

his other cases.

       Following argument, the trial court denied defendant’s motion to withdraw his

guilty plea, finding the plea was entered into knowingly, intelligently, and voluntarily.

Defendant was thereafter sentenced in accordance with the plea agreement to 24 years in

state prison and awarded a total of 1,483 days of credits for time served.

       On August 21, 2015, defendant filed a notice of appeal and request for certificate

of probable cause, challenging the validity of the plea and admission based on ineffective



                                              6
assistance of counsel and defense counsel’s advisement defendant would receive half-

time custody credits. The trial court granted defendant’s request for certificate of

probable cause on the same day.

                                              II

                                       DISCUSSION

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

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

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

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

conduct an independent review of the record.

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

has done so. In his two-page letter brief, defendant asks this court to reconsider his guilty

plea, his denial of his motion to withdraw his guilty plea, and his prior strike conviction.

Defendant also argues that at the time of the crime he was not in his right state of mind

due to drugs and alcohol and that he was going through hallucination and drug

withdrawal. He further argues that his attorney failed to address the case with him, gave

him no advice or assistance, and failed to file a motion to strike his prior strike

conviction. Defendant’s unsupported claims are unmeritorious.

       Section 1018 provides, in pertinent part, “On application of the defendant at any

time before judgment or within six months after an order granting probation is made if

entry of judgment is suspended, the court may, and in case of a defendant who appeared



                                              7
without counsel at the time of the plea the court shall, for a good cause shown, permit the

plea of guilty to be withdrawn and a plea of not guilty substituted.” (§ 1018.) “To

establish good cause, it must be shown that defendant was operating under mistake,

ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.]

Other factors overcoming defendant’s free judgment include inadvertence, fraud or

duress.” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “ ‘ “While . . . section

[1018] is to be liberally construed and a plea of guilty may be withdrawn for mistake,

ignorance, or inadvertence or any other factor overreaching defendant’s free and clear

judgment, the facts of such grounds must be established by clear and convincing

evidence. [Citations.]” ’ [Citation.] The burden is on the defendant to present clear and

convincing evidence the ends of justice would be subserved by permitting a change of

plea to not guilty.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)

       “ ‘When a defendant is represented by counsel, the grant or denial of an

application to withdraw a plea is purely within the discretion of the trial court after

consideration of all factors necessary to bring about a just result. [Citations.] On appeal,

the trial court’s decision will be upheld unless there is a clear showing of abuse of

discretion. [Citations.]’ [Citation.] ‘Guilty pleas resulting from a bargain should not be

set aside lightly and finality of proceedings should be encouraged.’ ” (People v. Weaver

(2004) 118 Cal.App.4th 131, 146.) After reviewing the entire record, we find no abuse of

the trial court’s discretion in its denial of defendant’s motion to withdraw his plea. The

record supports the trial court’s conclusion that defendant understood the plea agreement



                                              8
and that the plea was entered into knowingly, intelligently, and voluntarily. Defendant

suffered from nothing more than a case of buyer’s remorse. The plea agreement called

for a dismissal of an additional allegation, and a sentence substantially less than what he

could have received if convicted of the charges, and the plea form defendant initialed (as

well as his oral statements at the time his plea was accepted) demonstrated he understood

he would receive a 24-year sentence with credits calculated under section 2933.1 or at

85 percent. Under these circumstances, it was not a clear abuse of discretion to deny

defendant’s request to withdraw his plea.

       The record also shows that defendant received effective assistance of counsel.

Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v.

Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received

ineffective assistance of counsel. To do so, the defendant must show counsel failed to act

in a manner to be expected of a reasonably competent attorney and that counsel’s acts or

omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-

688, 691-692.) Defendant failed to show either of these prongs.

       We have reviewed the entire record pursuant to People v. Wende, supra, 25 Cal.3d

436, including the matters raised in defendant’s letter brief. We find no abuse of

discretion in the trial court’s denial of defendant’s motion to withdraw his guilty plea.

Nor do we find defendant received ineffective assistance of counsel. Furthermore, the

record shows that defendant understood the consequences of his plea, and that he

knowingly, intelligently, and voluntarily waived his rights.



                                              9
       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the entire record for potential error and find no arguable error

that would result in a disposition more favorable to defendant.

                                            III

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  RAMIREZ
                                                                                      P. J.
We concur:



CODRINGTON
                          J.



SLOUGH
                          J.




                                            10
