Filed 5/3/16 P. v. Garcia CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
          Plaintiff and Respondent,
                                                                     A144720
v.
DAVID GARCIA,                                                        (Sonoma County
                                                                     Super. Ct. No. SCR647980)
          Defendant and Appellant.


          Defendant David Garcia was caught possessing gang-related writings in violation
of the terms of probation imposed on him following two convictions for assault. After
conferring with a court-appointed attorney, defendant admitted the violation. One month
later, he obtained a new attorney and moved to withdraw his admission, arguing his
previous attorney did not advise him about potential defenses to the charged violation, or
seek an indicated sentence from the trial court. The trial court denied his motion. We
affirm.
                                                 BACKGROUND
          In April 2014, defendant was charged by felony complaint with three counts of
assault (Pen. Code, § 245, subd. (a)(1), (4)),1 with enhancements for committing the
assaults for the benefit of, or at the direction of, a criminal street gang (§ 186.22, subd.
(b)(2)). Defendant pleaded no contest to two counts of assault and one count of active
participation in a criminal street gang (§ 186.22, subd. (a)). At a September 30 hearing,


          1
              All further unspecified statutory references are to the Penal Code.


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the trial court imposed formal probation for 36 months. The terms of defendant’s
probation specified he was not to possess or use alcohol or marijuana without a valid
prescription. He was also prohibited from possessing any drawings, writings, or pictures
concerning membership in a criminal street gang. Defendant was represented by Joe
Rogoway, a private defense attorney, at both his plea hearing and sentencing hearing.
       Less than two weeks after he was granted probation, defendant was charged with
violating the terms of his probation after law enforcement found him in possession of
alcohol and marijuana during a traffic stop. At a subsequent hearing on October 15,
Defendant was represented by Lynn Stark-Slater of the Sonoma County Public
Defender’s Office. Defendant admitted to violating the terms of his probation at the
hearing. The trial court reinstated probation and directed that defendant serve 30 days in
the county jail, though it permitted defendant to serve his jail sentence on weekends to
accommodate his work schedule. The court told defendant that 30 days in jail was
“extremely lenient” and admonished him that “if they catch you with booze and/or
marijuana or any other violation again, I’m going to send you to prison. When I say that
to someone I mean it. Do you understand that?” Defendant said he understood.
       Eleven days later on October 26, 2014, defendant was caught transporting gang-
related writings, known as “kites,” while leaving from one of his weekend stints in jail.
The kites related to the transportation of marijuana into the jail, and referenced defendant
and one of his codefendants. At a hearing two weeks later on November 12, defendant
was again represented by Stark-Slater of the public defender’s office, and admitted to
violating his probation by possessing gang-related writings. Defendant informed the
court he had discussed the matter with Stark-Slater and said he understood that by
admitting to the violation, he was foregoing his right to a contested hearing. The matter
was continued to December 12 for sentencing.
       On the day scheduled for sentencing, Joe Rogoway, defendant’s first attorney,
substituted in as counsel in place of the public defender. Defendant then filed a motion to
withdraw the admission to the probation violation he made on November 12. According
to an accompanying declaration, Rogoway claimed that Stark-Slater “did not discuss with


                                             2
[defendant] potential relevant defenses that could be available to him in this matter, nor
did she advise that the successful presentation of any defense could lead to the complete
dismissal of the allegations against him.” The declaration also stated Stark-Slater “did
not discuss with Mr. Garcia that in addition to raising substantive defenses to the alleged
violation of probation, that there is additional process by which he could seek a
negotiated resolution to an alleged violation of probation.” Instead, Stark-Slater
informed defendant “that he had no choice but to enter an Admission to the probation
violation and leave his fate in the hands of the Court subject to the recommendation by
Probation.”
       Stark-Slater was called as a witness by the district attorney at the hearing on
defendant’s motion. She explained that she had served as an attorney with the Sonoma
County Public Defender’s office since 1993. She then detailed her representation of
defendant after he was charged with violating probation for a second time.2 According to
Stark-Slater, she first discussed defendant’s case with him at an initial hearing after
defendant was caught in possession of the kites. When asked if she received discovery
related to defendant’s case, Stark-Slater stated, “I received discovery on this case in two
phases. The first was the initial violation of probation report, and then I conducted
investigation to receive the second portion, which was a copy of the . . . kites that were in
the possession of the Sonoma County Sheriff’s Department.”
       After reviewing the discovery, Stark-Slater met with defendant twice more. The
first meeting occurred on November 5 while defendant was in custody. Stark-Slater
testified that she and defendant “discussed whether the individuals named in this kite
were individuals he knew, whether those were relevant. We discussed what would likely
happen at a violation of probation hearing, what we would have to show in order to win
the violation of probation hearing: Specifically that you had a string of coincidences that
landed the kite with [defendant] on that particular weekend, and his name happened to be


       2
        Defendant waived the attorney-client privilege as to the conversations he had
with Stark-Slater.


                                              3
in it, and his co-defendant’s name happened to be in it.” Stark-Slater informed defendant
that she believed he was not likely to succeed at a violation of probation hearing, and
recommended to defendant that he admit the violation. Stark-Slater met with defendant
again before the November 12 hearing, where the two of them discussed the rights
defendant would be waiving if he admitted the violation. Stark-Slater stated it appeared
to her that defendant understood what she was explaining and indicated that he wanted to
admit the violation.
       Rogoway cross-examined Stark-Slater. Rogoway asked her whether she explained
to defendant the defenses of necessity or duress during his meetings with defendant.
Stark-Slater responded that she knew the defenses sometimes applied in cases involving
criminal street gang activity, but that she did not discuss the defenses with defendant
because nothing from her conversations with him led her to believe they applied to his
case. Rogoway also questioned Stark-Slater about why she advised defendant not to
contest the probation violation. She answered that “based upon the evidence the people
had and the—that he was likely to be found in violation of probation, and based upon the
court’s comments, we would be better off trying to show the court that he was
rehabilitating himself if we didn’t have a viable defense to the violation of probation.”
Stark-Slater provided a similar answer in response to Rogoway’s question about why she
did not ask the court for an indicated sentence, stating “I didn’t want to drive the court
into a position where it felt backed into a wall by saying—no. I wanted to keep it open to
hopefully give [defendant] some time to demonstrate to the court that he was serious
about making a change.”
       The trial court denied defendant’s motion and gave a detailed explanation for its
decision. The court first addressed the adequacy of Stark-Slater’s legal advice, stating
that “after listening to the testimony of Ms. Stark-Slater, who testified credibly as to her
advisements given to [defendant], that [defendant] was fully advised of possible defenses
that he had in the case, and she analyzed those with him. Specifically, he was caught
with a kite while leaving custody, and the contents of the kite apparently implicated him
directly because of the reference to his co-defendants in the kite. [¶] He provided no


                                              4
information whatsoever indicating that he was under duress in receiving that kite. And
she analyzed and discussed his possible defenses with him. She not only advised him of
his right to a contested hearing, but that was also stated by the court before taking his
admission.” As to Stark-Slater’s experience, the court noted that she had “handled a huge
number of violations of probation,” and that her experience “is directly relevant in that
regard to the charges against [defendant] and the advice that she gave him.”
       The trial court then addressed Stark-Slater’s decision not to seek an indicated
sentence: “Ms. Stark-Slater did testify as to her tactical decision not to address the court
on possible sentences until after the admission was taken. And there appears to be a
substantial basis for her decision in that regard and her advice to [defendant], based on
her analysis. . . . [¶] I think [defendant] was fully advised of the risks he was taking. The
court certainly told him at the time that he admitted his first violation . . . for drinking and
being in possession of marijuana that that showed a very poor apprehension of the
seriousness of the charges against him and the possible prison sentence that he—he faced.
[¶] The court, in many situations would have simply sent him to prison at that time. But
because of the nature of the violations and the fact that he appeared to at least have some
prospects for rehabilitation, I not only put him back on probation, but released him from
custody. The recommendation of probation and the strong advisement of the district
attorney’s office was he should serve time on that, but I was concerned he might lose his
job and that would affect his ability to rehabilitate himself. But I told him at that time
that he needed to take this very, very seriously. [¶] And what does he do? He goes out
and somehow obtains a kite while in custody, which shows that he’s still enmeshed in the
gang culture, the very thing that got him involved in this assaultive situation to start with.
And that not only shows a lack of apprehension of the seriousness of what he’s facing,
but that he has very poor prospects of rehabilitation.”
       The trial court then revoked defendant’s probation and sentenced him to the
middle term of three years on his first assault conviction. The court imposed a concurrent
three-year sentence on defendant’s other assault conviction.



                                               5
       Defendant timely filed a notice of appeal, which included a request for a certificate
of probable cause. (See § 1237.5.) The trial court granted the request.
                                       DISCUSSION
       Defendant argues the trial court abused its discretion by denying his motion to
withdraw his admission to the probation violation because he demonstrated two separate
grounds for good cause to withdraw his admission. First, he claims he had good cause
because Stark-Slater failed to advise him of available defenses to the charged probation
violation. Second, he contends he had good cause because Stark-Slater’s failure to advise
him of his right to seek an indicated sentence amounted to ineffective assistance of
counsel.
       The parties agree that the standards governing the withdrawal of an admission to a
probation violation are the same ones governing the withdrawal of a guilty plea under
section 1018. Section 1018 states, in pertinent part: “On application of the defendant at
any time before judgment . . ., the court may, . . . for a good cause shown, permit the plea
of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be
liberally construed to effect these objects and to promote justice.” (§ 1018.) “The
defendant has the burden to show, by clear and convincing evidence, that there is good
cause for withdrawal of his or her guilty plea. (People v. Breslin (2012) 205 Cal.App.4th
1409, 1415-1416 (Breslin).) “To establish good cause to withdraw a guilty plea, the
defendant must show by clear and convincing evidence that he or she was operating
under mistake, ignorance, or any other factor overcoming the exercise of his or her free
judgment, including inadvertence, fraud, or duress.” (Id. at p. 1416.) “A denial of the
motion will not be disturbed on appeal absent a showing the court has abused its
discretion.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)
       Defendant has not demonstrated an abuse of discretion under either of his theories.
First, defendant’s assertion that he was not advised of certain defenses is unpersuasive
because he has not explained the relevance of those defenses to his case. (See In re
Brown (1973) 9 Cal.3d 679, 685 [motion to withdraw plea properly denied when
defendant presented “total lack of substantive grounds” to support claim of innocence],


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superseded by statute on other point.) The only specific defenses Stark-Slater was
questioned about during the hearing were duress and necessity. Stark-Slater testified that,
based on her conversations with defendant, she believed neither defense applied. The
trial court found her testimony to be credible, and defendant has not questioned that
finding. Instead, defendant only discusses duress and necessity in the abstract without
explaining their applicability to his case.3 We do not see how Stark-Slater’s failure to
explain abstract legal principles to defendant could have affected the “exercise of his . . .
free judgment” when he admitted to violating probation.4 (Breslin, supra, 205
Cal.App.4th at p. 1416.)
       We also reject defendant’s related contention that he should be able to withdraw
his plea because Stark-Slater did not conduct an investigation into defendant’s case. The
record on appeal contradicts defendant’s argument; it reveals that after defendant was
charged with possessing gang-related writings, Stark-Slater reviewed the writings and a

       3
          For example, defendant’s opening brief makes the threadbare assertion that
Stark-Slater’s “failure to advise [defendant] of the existence of potential defenses and her
ability to investigate potential evidence to those defenses led [defendant] to believe he
had no legitimate alternative to entering an admission to the violation of probation. Thus,
[defendant] could not have knowingly and intelligently bargained away his rights because
of prior counsel’s failure to properly advise him.”
       4
         In response to a case cited by the Attorney General in its respondent’s brief,
People v. Hernandez (1979) 96 Cal.App.3d 856, defendant argued in his reply brief that
his Fifth Amendment right not to be a witness against himself protects him from having
to claim he is innocent to prevail on his motion. Defendant cites no authority to support
this argument. His argument is also at odds with decisions from the California Supreme
Court and courts of appeal affirming the denial of a motion to withdraw a plea in
circumstances where the defendant did not deny culpability. (See In re Brown, supra, 9
Cal.3d at p. 685; People v. Nance, supra, 1 Cal.App.4th at p. 1456 [no abuse of discretion
when defendant “apparently did not question his culpability for the acts”]; People v. Beck
(1961) 188 Cal.App.2d 549, 553 [“If defendant had any facts that would have shown or
tended to show him to be innocent of the offenses charged, and he believed that such
facts should persuade the trial court to exercise a favorable discretion toward allowing
him to withdraw his pleas of guilty, the burden was on defendant to present such facts to
the court.”].) In any event, we need not resolve this issue because even if we agree that
defendant does not have to assert his innocence, he has failed to present any other
evidence showing he had good cause to withdraw his plea.


                                              7
probation report, then met with defendant to talk about his case. Stark-Slater’s
investigation led her to believe that defendant did not have a viable defense, and
defendant never argues that Stark-Slater’s assessment was incorrect.
        Defendant’s reliance on People v. Harvey (1984) 151 Cal.App.3d 660 (Harvey)
and In re Williams (1969) 1 Cal.3d 168 (Williams) is misplaced because in each case,
there was clear evidence the defendant’s attorney failed to disclose information that could
have exonerated the defendant. In Harvey, the defendant pleaded guilty to second degree
murder without having been told that a psychiatrist who had examined the defendant
concluded she lacked the required mental state to commit second degree murder.
(Harvey, supra, at p. 665.) The appellate court concluded the trial court abused its
discretion in denying the defendant’s motion to withdraw her guilty plea because “it is
clear from the record that she did not have knowledge of a defense, not only potentially
meritorious, but absolutely critical to her case.” (Id. at p. 671.) In Williams, the
defendant pleaded guilty to forgery upon the advice of his counsel, but the attorney was
unaware of case law holding the defendant’s crimes were legally punishable only as
separate credit card offenses. (Williams, supra, at p. 176.) Our Supreme Court granted
the defendant’s habeas corpus petition, finding that the attorney did not provide effective
assistance of counsel because he did not research the facts and the law, and instead
“permitted the petitioner to plead guilty to a crime which he did not commit.” (Id. at p.
171.)
        Defendant’s second argument––that Stark-Slater provided constitutionally
ineffective assistance by not seeking an indicated sentence––is likewise unavailing. A
criminal defendant has the right to the effective assistance of counsel when entering a
plea. (People v. Perez (2015) 233 Cal.App.4th 736, 740-41.) “To show denial of that
right, a defendant must show: (1) his or her counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms; and (2) the
deficient performance prejudiced the defendant.” (Breslin, supra, 205 Cal.App.4th at p.
1418.) “Where, as here, a defendant is represented by counsel during the plea process
and enters his [or her] plea upon the advice of counsel, the voluntariness of the plea


                                              8
depends on whether counsel’s advice ‘was within the range of competence demanded of
attorneys in criminal cases.’ ” (Hill v. Lockhart (1985) 474 U.S. 52, 56 (Hill).) “The
second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the plea process. In
other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he [or she] would not have
pleaded guilty and would have insisted on going to trial.” (Id. at p. 59.)
       Defendant has not established that Stark-Slater’s representation fell below an
objective standard of reasonableness. Rather, the record indicates that Stark-Slater had a
strategic reason for not seeking an indicated sentence. She represented defendant at his
first probation violation hearing, where the trial court exhorted defendant he would be
sent to prison if he violated probation again. After defendant was charged with the
subsequent violation for possessing gang-related writings, Stark-Slater reviewed the
writings and a probation report, then met with defendant to discuss his case. She then
concluded defendant was likely to be found in violation of his probation. Faced with a
weak case and the trial court’s stern warning to defendant, Stark-Slater could reasonably
conclude that defendant’s best option was to admit the probation violation without
discussing the sentence with the trial court. As Stark-Slater explained, this strategy
would “hopefully give [defendant] some time to demonstrate to the court that he was
serious about making a change.”
       Nor has defendant shown prejudice from Stark-Slater’s decision not to ask for an
indicated sentence. The trial court sentenced defendant to three years in prison, which is
the middle term for an assault conviction. (§ 245, subd. (a).) Defendant was aware the
trial court would likely impose such a sentence based on its comments following his first
probation violation. Defendant, however, has presented no evidence showing that he
would have received a shorter sentence or been found not to be in violation of probation
had he proceeded to a full hearing instead of admitting the violation. We therefore
cannot conclude defendant has shown a reasonable probability that he “would not have
pleaded guilty and would have insisted on going to trial.” (Hill, supra, 474 U.S. at p. 59.)


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                                 DISPOSITION
     The judgment is affirmed.




                                          _________________________
                                          Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




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