Filed 10/9/13 P. v. Reyes 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065761
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF140907A)
                   v.

EDUARDO CHAVEZ REYES,                                                                    OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         Matthew A. Siroka, under appointment by the Court of Appeal, Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Kane, J.
       Appellant, Eduardo Chavez Reyes, pled no contest to assault with a deadly
weapon (Pen. Code, § 245, subd. (a))1 and was sentenced to a three-year prison term. On
appeal, Reyes contends the court abused its discretion when it denied his motion to
withdraw his plea. We affirm.
                                         FACTS
       On the evening of March 3, 2012, Bakersfield police officers responded to Maria
Andreas’s residence on a report of an assault with a deadly weapon. Andreas told the
officers that she and Reyes had two children together and earlier that day Reyes took one
with him. Earlier that evening, she and her boyfriend Julio Montufar were in her living
room when they heard someone tampering with a window screen in the front of the
residence. Reyes then climbed in through the window, challenged Montufar to fight, and
demanded that Andreas let him take the children. Andreas refused and Reyes got a knife
from the kitchen and again challenged Montufar to fight. When Reyes walked toward
Montufar pointing the knife at him, Montufar grabbed the knife and took it away. Reyes
then got his other child from the residence and fled with both children.
       Montufar told the officers that after climbing in through the window, Reyes
grabbed a knife and challenged him to fight. When Montufar grabbed the knife, Reyes
ran the blade across Montufar’s hand, cutting several of Montufar’s fingers. Reyes was
detained and arrested that night.
       On March 6, 2012, the district attorney filed a complaint charging Reyes with first
degree burglary (count 1/§ 460, subd. (a)); assault with a deadly weapon (count 2) with a
personal use of a weapon enhancement (§ 12022, subd. (b)); kidnapping (count 3/§ 207,
subd. (a)); and driving without a valid driver’s license (count 4/Veh. Code, § 12500,
subd. (a)).




1      All further statutory references are to the Penal Code unless otherwise indicated.


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       On March 19, 2012, at the pre-preliminary hearing, while represented by public
defender Jacob Evans, Reyes entered into a plea bargain. Pursuant to the plea agreement,
Reyes pled no contest to the assault charge in exchange for dismissal of the remaining
counts and allegations and a stipulated three-year prison term. Prior to entering his plea,
Reyes initialed and signed a change of plea form that contained: a section that
memorialized the terms of his plea agreement, a section that explained the consequences
of his plea, a section that explained Reyes’s constitutional rights, and a section that
contained a waiver of these rights.
       On April 17, 2012, retained counsel Arturo Revelo substituted in for Evans.
       On July 24, 2012, Revelo filed a motion to withdraw plea on Reyes’s behalf,
alleging, in pertinent part, that Evans’s failure to investigate and discover Montufar’s
criminal background resulted in a waiver of rights by Reyes that was not knowing and
intelligent.
       On August 2, 2012, at a hearing on the motion, Evans was called by the defense
and testified that he attempted to investigate Montufar but did not recall what his
investigation yielded. Evans met with Reyes multiple times on the day of the pre-
preliminary hearing. However, he did not have an investigator from his office investigate
the facts of Reyes’s case prior to the pre-preliminary hearing. When he was going over
the waiver form and plea offer with Reyes, Reyes was indecisive about whether to accept
the offer. In accord with his standard practice, Evans would have told Reyes the case
could be continued so Reyes could take some time to think about it, he could fight the
case, or he could enter a plea. That advice would have changed if the plea offer had been
a “today-only” offer but there was no indication of that in Evans’s notes. This meant he
probably told Reyes it was “perfectly advisable” to think about the plea offer if he was
not sure, especially in a case as serious as Reyes’s case.
       After Evans testified, the court granted Revelo’s request to take judicial notice of
certain court records relating to case No. BF125655A in which Montufar was charged


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with three felony offenses, but convicted only of false imprisonment (§ 236), and case
No. BF093821A in which he was convicted of misdemeanor domestic violence (§ 273.5,
subd. (a)). The records also showed that Montufar was placed on probation in the false
imprisonment case for three years and that his probation would end on June 9, 2012.
       Reyes then testified that Evans did not talk to him about the details of his case or
the police version of events and just told him to “sign.” Evans did not tell Reyes
anything about Montufar’s criminal background and had Reyes been aware of it, he
would have fought his case and not taken a plea. Reyes intended to fight the charges if
he were allowed to withdraw his plea.
       On cross-examination, Reyes claimed he was still living in the residence with
Andreas when the alleged offenses occurred. The only thing Reyes remembered from the
day he entered his plea was that Evans asked him “just to sign some papers.” But at the
end, when he did not want to continue signing, Evans kept saying, “sign, sign, sign.” He
denied that Evans told him he could have more time to think about the plea offer or that
he could continue the case so that “they could investigate.” Evans told Reyes that if his
case went to a jury trial, Reyes would probably lose and get six years. Reyes told Evans
the allegations involving the children were not true. He did not tell Evans his version of
what happened with the knife because Evans did not ask him about it. Additionally,
Evans did not tell Reyes that he was charged with assaulting someone with a knife; nor
did Reyes know that he was pleading guilty to assault with a knife.
       Evans testified in rebuttal for the prosecution that he went over the police report
and the witness statements with Reyes and that he asked Reyes about his version of what
happened. Evans went over all the charges with Reyes, including the assault with a
deadly weapon charge. On the change of plea form, Evans underlined the key terms he
went over. In accord with his practice, Evans would have gone over Reyes’s
constitutional rights and he would have told him he could fight his case and that the
preliminary hearing, which had already been scheduled, was the first step in doing so.


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Evans would have told these things to Reyes at the beginning of the conversation with
him and again when they went over the change of plea form. Evans also would have
discussed with Reyes whether he had any defenses and their strengths and weaknesses.
       Evans made it clear to Reyes that it was Reyes’s choice whether or not to enter a
plea and nobody could force him “either way.” Evans did not pressure Reyes into
entering a plea and he never told him to “sign, sign, sign.” Evans probably told Reyes
that if he went to trial he would probably lose and get about six years. In response to
questions by Evans, Reyes stated he understood everything and, although he was hesitant
and unenthusiastic about it, he said he wanted to accept the plea bargain and he gave a
specific reason for doing so.
       After hearing argument, the court did not find good cause for Reyes to withdraw
his plea and it denied his motion. In pertinent part, the court also found that attorney
Evans went over the change of plea form with Reyes and explained to him the three
options: 1) accept the plea offer; 2) take the matter to trial; or 3) continue the matter.
                                       DISCUSSION
I.     The Motion to Withdraw Plea
       A trial court may allow a defendant to withdraw a guilty plea upon his or her
showing of good cause based on clear and convincing evidence. (§ 1018; People v. Cruz
(1974) 12 Cal.3d 562, 566.) For present purposes, a plea of no contest is considered the
same as a plea of guilty. (§ 1016, par. 3.) Good cause to withdraw a guilty plea includes
“[m]istake, ignorance or any other factor overcoming the exercise of free judgment.”
(People v. Cruz, supra, at p. 566.) However, a defendant must establish that his free will
was overcome, not merely that he had a change of heart. (People v. Nance (1991) 1
Cal.App.4th 1453, 1456.)
       We review the trial court’s decision to deny a motion to withdraw a guilty plea for
abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 442-443.) We adopt the




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trial court’s factual findings to the extent they are supported by substantial evidence.
(People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
       Here, Reyes filled out a change of plea form that explained the consequences of
Reyes’s plea and his constitutional rights and which contained a waiver of those rights.
Further, Evans testified that he reviewed with Reyes the plea form, the police reports, the
witness statements, and Reyes’s version of events. Evans also explained to Reyes that he
had three options: accept the offer and enter a plea, continue the matter so he could have
more time to consider the offer, or take his case to trial. Evans further testified that
although Reyes was hesitant, he opted to accept the plea offer and he gave a specific
reason for doing so. Thus, the record supports the trial court’s finding that Reyes failed
to prove by clear and convincing evidence that he had good cause to withdraw his plea.
       Reyes contends that prior to entering his plea Evans failed to investigate Montufar
and discover that he had a conviction for felony false imprisonment, a conviction for
misdemeanor domestic violence, and that Montufar was on probation when Reyes
allegedly assaulted him. He cites People v. Ramirez (2006) 141 Cal.App.4th 1501
(Ramirez) apparently to contend that because he was ignorant of important information
that would have altered his decision-making and the bargaining process, he did not
voluntarily or intelligently waive his constitutional rights, which resulted in his plea not
being intelligent or voluntary.2 Thus, according to Reyes, the court abused its discretion
when it denied his motion to withdraw plea. We disagree.
       The evidence of Montufar’s criminal background and probationary status was not
directly exculpatory. Rather, it was evidence that might have borne on his credibility and
character. Such evidence has a far more attenuated connection to Reyes’s free judgment
to enter a plea and did not directly support Reyes’s factual innocence. As the United


2      Reyes cites People v. Howard (1992) 1 Cal.4th 1132, 1175 to contend, “A guilty
(or no contest) plea must be a knowing, and intelligent waiver of constitutional rights.”
(Sic.)


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States Supreme Court has explained, “it is particularly difficult to characterize
impeachment information as critical information of which the defendant must always be
aware prior to pleading guilty given the random way in which such information may, or
may not, help a particular defendant.” (United States v. Ruiz (2002) 536 U.S. 622, 630
(Ruiz).) The high court added that such information bears more on the fairness of a trial
rather than the voluntariness of a plea. (Id. at p. 633.) Like impeachment evidence,
character evidence is not “critical information” (id. at p. 630) that a defendant needs to
determine whether to plead guilty, since its exculpatory value is remote and highly
speculative. Thus, we conclude that the alleged failure of Evans to discover and advise
Reyes of Montufar’s criminal record and his probationary status did not affect the
voluntariness of Reyes’s plea.
       Reyes’s reliance on Ramirez is misplaced. In Ramirez, after the defendant entered
his plea, defense counsel learned of a previously undisclosed supplemental police report
containing information from two witnesses that a different person had committed the
crime charged against the defendant. (Ramirez, supra, 141 Cal.App.4th at pp. 1504-
1506.) The prosecution in Ramirez had ample opportunity to provide the supplemental
report to the defendant prior to the admission of defendant’s guilty plea; however, the
prosecution failed to produce the report or even disclose the information contained in the
report to the defendant. (Id. at p. 1506.) Therefore, the defendant was able to
demonstrate “by clear and convincing evidence that the prosecution’s withholding of
favorable evidence affected his judgment in entering his plea, rendering the waiver of
rights involuntary.” (Id. at pp. 1507-1508.)
       Ramirez is easily distinguishable because the information at issue there involved
potentially strong, exculpatory evidence, whereas the information at issue here involves
only impeachment and character evidence, which as noted above, bears more on the
“fairness of a trial than to the voluntariness of the plea.” (Ruiz, supra, 536 U.S. at p.
633.) Further, the plea reduced Reyes’s custody exposure to three years and it resulted in


                                               7
the dismissal of a first degree burglary charge and a kidnapping charge. Thus we
conclude that the trial court did not abuse its discretion in refusing to allow defendant to
withdraw his plea.

II.    Reyes Was Not Denied His Right to Due Process or to the Effective Assistance
       of Counsel
       Reyes contends he was denied the effective assistance of counsel by Evans’s
failure to investigate Montufar’s criminal history before allowing him to enter his plea.3
Because Reyes did not raise his ineffective assistance of counsel claim in the trial court,
he is precluded from raising it on appeal. (People v. Badgett (1995) 10 Cal.4th 330, 351.)
Nevertheless, even if this issue were properly before us, we would reject it.
       “The pleading--and plea bargaining--stage of a criminal proceeding is a critical
stage in the criminal process at which a defendant is entitled to the effective assistance of
counsel guaranteed by the federal and California Constitutions.” (In re Alvernaz (1992) 2
Cal.4th 924, 933.) Accordingly, ineffective assistance of counsel may constitute good
cause for withdrawal of a guilty plea. (Id. at p. 934 [“where ineffective assistance of
counsel results in the defendant’s decision to plead guilty, the defendant has suffered a
constitutional violation giving rise to a claim for relief from the guilty plea”].) However,
“in order successfully to challenge a guilty plea on the ground of ineffective assistance of
counsel, a defendant must establish not only incompetent performance by counsel, but
also a reasonable probability that, but for counsel’s incompetence, the defendant would
not have pleaded guilty and would have insisted on proceeding to trial.” (Ibid.) “A
defendant’s statement to that effect is not sufficient. Rather, there must be some
objective showing. [Citation.]” (In re Vargas (2000) 83 Cal.App.4th 1125, 1140.)



3      Reyes also contends he was denied his right to due process because his sentence
was based on a conviction obtained without a valid waiver of rights. Since we have
already rejected Reyes’s contention that his waiver of rights was not valid, we reject this
contention as well.


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       Moreover, “a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697.) “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” (Ibid.)
       Although Reyes testified he would not have entered a plea had he known of
Montufar’s criminal record, he does not point to any objective evidence that corroborates
this testimony. Accordingly, we conclude there is no merit to Reyes’s claim that he was
denied the effective assistance of counsel in entering his plea because Reyes has not
shown that he was prejudiced by counsel’s alleged deficient performance.
                                     DISPOSITION
       The judgment is affirmed.4




4      On January 14, 2013, Reyes filed a Motion for Judicial Notice in this court
requesting judicial notice of certain records pertaining to Montufar’s conviction in case
Nos. BF125655A, in which Montufar was convicted of felony false imprisonment
(§ 236), and BF093821A, in which he was convicted of misdemeanor domestic violence
(§ 273.5, subd. (a)). These records are attached to Reyes’s motion as exhibits A through
D. Reyes’s request to take judicial notice of these records is granted as to page 1 of
exhibit B, page 1 of exhibit C, and page 1 of exhibit D. Reyes’s request is denied as to
the remaining records.


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