Filed 7/21/15 P. v. Cervantes CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068098
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12908753)
                   v.

LUIS CERVANTES,                                                                          OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
         Salvatore Sciandra and Lisa M. Sciandra for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
          A jury convicted appellant Luis Cervantes, in Fresno County Superior Court case
No. F1208753, of three counts of second degree robbery (Pen. Code, § 211)1 and found
true a personal use of a firearm enhancement (§ 12022.53, subd. (b)) in each count.
          On August 2, 2013, the court sentenced Cervantes to an aggregate term of 16 years
four months: an aggregate term of 12 years in count 1; a consecutive, aggregate term of
four years four months on count 2; a concurrent, aggregate term of 12 years on count 3;
and a concurrent term of three years on his domestic violence conviction in an unrelated
case (Fresno County Superior Court case No. F11907381).
          On appeal, Cervantes contends the court abused its discretion when it denied his
motion for a new trial. Respondent contends Cervantes’s abstract of judgment does not
correctly memorialize the judgment. We conclude that Cervantes’s abstract of judgment
contains several errors and direct the trial court to correct them. In all other respects, we
affirm.
                                            FACTS
          On April 21, 2012, as Alejandro Soto was driving to Del Rey with passengers
Marisol Z. and her grandmother, Maria Hernandez, an SUV began following them. Soto
parked his vehicle and the SUV stopped behind him. Soto got out of his vehicle,
approached the driver’s window of the SUV and asked Cervantes, the driver of the SUV,
what was wrong. Cervantes pointed a gun at Soto and demanded to know what he was
doing there and why he was driving with his high beams on. Soto told Cervantes and his
passenger that he did not want any problems. Soto got back in his vehicle and drove
away. The SUV continued to follow Soto’s vehicle. Eventually, Soto stopped again and
the SUV stopped in front of his vehicle. Cervantes walked over to Soto and ripped a
rosary from his neck and took his watch. He also grabbed the ignition key and had Soto
get out of his vehicle. As Cervantes pointed a gun at Soto, his confederate held a gun to

1         Unless otherwise indicated, all further statutory references are to the Penal Code.


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Marisol’s chest and took her cellphone, necklace, and bracelet. Cervantes and his
confederate also took a chain from Hernandez. Eventually, the men left and Soto and the
women called the police from a nearby residence.
       Two days later, Soto identified Cervantes from a photo lineup as the driver of the
SUV.
       On November 20, 2012, the district attorney filed an information charging
Cervantes with the robbery charges that he was convicted of and the gun enhancements
that were found true.
       On April 4, 2013, the jury convicted Cervantes on the three robbery charges and
found the enhancements true.
       On June 21, 2013, Cervantes filed a motion for a new trial, alleging he was denied
the effective assistance of counsel: (1) during plea bargaining by defense counsel’s
erroneous advice that he faced a maximum term of 17 years rather than the maximum
term of 23 years eight months that he actually faced; and (2) during the trial when
defense counsel aggressively advised him not to testify, which resulted in Cervantes not
testifying.
       In a supporting declaration, Cervantes alleged, in pertinent part, that throughout
the trial he maintained his innocence. At the last trial confirmation hearing, defense
counsel informed him that the prosecution had offered a plea bargain calling for a three-
year prison term. Defense counsel told Cervantes that if he were convicted of all the
counts and all the enhancements were found true, he faced a maximum term of 17 years.
Defense counsel also told Cervantes that he had a good chance of being acquitted because
of a weak identification and the lack of direct evidence linking him to the crime.
Cervantes rejected the plea offer based on defense counsel’s representations that he had a
good chance of being acquitted and that the maximum term he faced was 17 years.
Cervantes further asserted that even though he maintained his innocence, if he had known



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the maximum penalty he faced was 23 years, he would have accepted the plea offer of
three years and plead no contest to the charges.
       On July 10, 2013, the court found Cervantes was not coerced into not exercising
his right to testify and denied the motion on that ground. The court tentatively denied the
motion on the ground that defense counsel erroneously misadvised him of the maximum
term he faced during plea negotiations and it continued the hearing so that it could do
some additional research. The court also stated it did not find credible Cervantes’s
statement that he would have accepted a plea bargain if he had been advised he faced a
maximum term of 23 years.
       On July 30, 2013, the court found that Cervantes failed to show that he would
have accepted the plea bargain if he had been advised that he faced 23 years and it denied
his motion for a new trial on the remaining ground.
                                      DISCUSSION
The Motion for a New Trial
       Cervantes challenges the denial of his motion for a new trial only on the ground of
ineffective assistance of counsel during plea negotiations. According to Cervantes,
reversal of the order denying his motion for a new trial is required because the trial
court’s finding that he was not credible is not supported by any evidence. We reject this
contention.
       “Although ineffective assistance of counsel is not one of the statutory grounds for
granting a new trial, the issue may nonetheless be asserted as the basis for a motion for
new trial.” (People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) A defendant is entitled
to effective assistance of counsel at the plea bargaining stage of a criminal proceeding.
(In re Resendiz (2001) 25 Cal.4th 230, 239.) “Application of the constitutional guarantee
of effective assistance of counsel to the advice given a defendant to plead guilty
necessarily encompasses the counterpart of that advice: to reject a proffered plea bargain
and submit the issue of guilt to the trier of fact.” (In re Alvernaz (1992) 2 Cal.4th 924,

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934-935 (Alvernaz).) Thus, counsel’s ineffective representation that results in a
defendant’s rejection of an offered plea bargain and in the defendant’s decision to
proceed to trial also gives rise to a claim of ineffective assistance of counsel. (Ibid.)
       “… To demonstrate that a defendant has received constitutionally inadequate
representation by counsel, he or she 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 performance subjected the defendant to
prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result
would have been more favorable to the defendant.” (Alvernaz, supra, 2 Cal.4th at pp.
936-937.)
       “… To establish prejudice, a defendant must prove there is a reasonable
probability that, but for counsel’s deficient performance, the defendant would have
accepted the proffered plea bargain and that in turn it would have been approved by the
trial court.” (Alvernaz, supra, 2 Cal.4th at p. 937, italics added.)
       “In determining whether a defendant, with effective assistance, would have
accepted the 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.” (Alvernaz,
supra, 2 Cal.4th at p. 938.)
        “[D]efense counsel must communicate accurately to a defendant the terms of any
offer made by the prosecution, and inform the defendant of the consequences of rejecting
it, including the maximum and minimum sentences which may be imposed in the event
of a conviction.” (Alvernaz, supra, 2 Cal.4th at p. 937.) Thus, counsel provided deficient
representation by her failure to accurately advise Cervantes that he faced a maximum
term of 23 years eight months if he rejected the plea offer.

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       Turning to the prejudice prong, we note that Cervantes has not alleged or shown
that the trial court would have accepted the plea bargain. Further, the only evidence that
he would have accepted the prosecution’s plea deal is his statement to that effect
contained in the supporting declaration attached to his motion for a new trial. “However,
‘The [trier of fact] is not bound to believe even the uncontradicted testimony of a
particular witness, especially where the statements are self-serving and the [trier of fact]
has reason to believe that other testimony of the witness is untruthful.’” (People v. Surety
Ins. Co. (1978) 77 Cal.App.3d 533, 537.)
       Cervantes contends this rule does not apply because the court did not have reason
to believe that other testimony by him was not truthful. Cervantes misinterprets the
above quotation. Self-serving statements and evidence of other false testimony by a
witness may make it more appropriate for a trier of fact to reject the uncontradicted
testimony of a witness. The above quote, however, does not mean that they are a
prerequisite for the trier of fact to do so.
       In any event, “a defendant’s self-serving statement—after trial, conviction, and
sentence—that with competent advice he or she would have accepted a proffered plea
bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to
prejudice, and must be corroborated independently by objective evidence.” (Alvernaz,
supra, 2 Cal.4th p. 938, second italics added.) Cervantes, however, has not cited any
objective evidence that corroborates his claim that he would have accepted the plea offer
if properly advised.
       Cervantes contends that several minute orders in the record show he was amenable
to plea bargaining and that this provides the requisite corroboration of his statement that
he would have accepted the proffered plea bargain. We disagree.
       The minute orders Cervantes refers to show that a settlement conference which
was originally scheduled for November 20, 2012, was continued three times, including
on February 21, 2013, when it was continued to March 7, 2013, the date Cervantes

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rejected the plea bargain and the offer was revoked. The minute order for February 21,
2013, contains the notation, “Oral motion by Defense requesting continuance for possible
resolution.” Cervantes contends this notation shows that defense counsel expressed to
the court there was a reasonable possibility the case would settle and that this indicates
Cervantes was amenable to negotiating a plea bargain. Cervantes is wrong.
       That a resolution was possible does not mean it was probable or that there was a
reasonable possibility that a resolution would be reached. By its nature, a settlement
conference entails the possibility of a plea offer by the prosecution and its acceptance by
the defendant. Further, defense counsel was duty bound to obtain the best possible
resolution for Cervantes and to communicate any plea offers by the prosecution to him.
Thus, it does not follow from the above notation that a resolution was possible and that
defense counsel was telling the court there was a reasonable possibility the case could
settle. In any event, there is nothing in the February 21, 2013, minute order indicating
that defense counsel was expressing Cervantes’s sentiments with respect to resolving the
case. Thus, even if the quoted notation indicates defense counsel was amenable to
negotiating a plea bargain and that she believed there was a reasonable possibility of
resolving the case, it cannot be inferred from the notation that Cervantes was also
amenable to negotiating a plea deal. This is particularly true in view of Cervantes’s
continued insistence that he was innocent, defense counsel’s representation that the
prosecution’s case was weak, and Cervantes’s ultimate rejection of a very favorable plea
bargain.
       Cervantes also contends that the significant disparity between the maximum term
of 23 years eight months he actually faced and the maximum term of 17 years he was
erroneously advised of provides some corroborating evidence. We disagree.
       Based on counsel’s erroneous advice that he faced a maximum term of 17 years,
Cervantes would have understood that by accepting the three-year plea deal he would
avoid the risk of serving a substantial amount of additional time, i.e., 14 years. Based on

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his actual maximum term of 23 years eight months, by accepting the plea offer Cervantes
actually would have avoided the risk of serving an additional 20 years eight months, a
difference of six years eight months. However, in his declaration, Cervantes did not
explain why knowing he would reduce his maximum potential sentence an additional six
years eight months would have convinced him to accept the three-year plea offer when
knowing that the offer would have reduced his maximum term by 14 years did not. Thus,
we conclude that the record does not contain any objective evidence that corroborates
Cervantes’s statement that he would have accepted the plea bargain if he had been
properly advised of the maximum term he faced. Further, since Cervantes did not meet
his burden of showing that he was prejudiced by defense counsel’s alleged deficient
performance, it follows that the court did not abuse its discretion when it denied
Cervantes’s motion for a new trial.
Cervantes’s Abstract of Judgment
       Respondent contends the court sentenced Cervantes to an aggregate term of 17
years and his abstract of judgment erroneously indicates it sentenced him to an aggregate
term of only 16 years four months. Although we conclude that respondent is wrong, our
review of Cervantes’s abstract of judgment uncovered several errors that we will direct
the trial court to correct.
       On July 30, 2013, the court sentenced Cervantes to an aggregate 17-year term.
However, on August 2, 2013, the court implicitly recalled the sentence (§ 1170, subd.
(d)) and resentenced Cervantes to an aggregate term of 16 years four months. Thus, there
is no merit to respondent’s claim that Cervantes’s abstract of judgment does not
accurately memorialize his sentence.
       However, our review of the abstract disclosed several errors. In section 1 of the
abstract, the column labeled “CONCURRENT” does not indicate that the court imposed
a concurrent three-year term on Cervantes’s domestic violence conviction in Fresno
County Superior Court case No. F11907381. In section 15, the abstract erroneously

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indicates that sentence was pronounced at his original sentencing hearing rather than at a
resentencing per recall of commitment pursuant to section 1170, subdivision (d). In
section 16, it erroneously indicates that sentence was pronounced on July 30, 2013, rather
than August 2, 2013. We will direct the trial court to correct these errors.
                                      DISPOSITION
       The trial court is directed to issue an amended abstract of judgment that corrects
the errors noted above and to forward a certified copy to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.




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