Filed 8/25/14 P. v. Vasquez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060910

v.                                                                       (Super.Ct.No. SWF1301229)

ISIDRO VAZQUEZ,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed.

         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                                             I

                                   INTRODUCTION

       On November 12, 2013, an amended information charged defendant and appellant

Isidro Vazquez with sexual penetration by force upon a child under 14 and seven or more

years younger under Penal Code1 section 269, subdivision (a)(5) (count 1); lewd and

lascivious act on a child under 14 with intent to arouse under section 288, subdivision (a)

(count 2); lewd and lascivious acts upon a child under 14 by force with the intent to

arouse under section 288 subdivision (b)(1) (counts 3, 4); and rape of a child under 14

and seven or more years younger under sections 269 subdivision (a)(1) and 261,

subdivision (a)(2) or (a)(6) (count 5). The amended information alleged that counts 1 and

2 occurred on or about September of 2012; that count 3 occurred on or about 2012; and

counts 4 and 5 occurred on or about January of 2013.

       On the same date as the filing of the amended information, defendant entered into

a plea agreement wherein he would plea guilty to counts 1 and 4, with the stipulated

agreement that the custody term would be 15 years to life with lifetime sex offender

registration under section 290. At the change of plea hearing, the court advised defendant

of the charges to which he was pleading guilty, the stipulated sentence, and the lifetime

registration requirement. Defendant indicated that he understood these advisements.

Defendant acknowledged that nothing else was promised to him to induce the guilty plea,

and indicated that his attorney had explained the 15-year-to-life sentence to him. The

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

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court then explained that defendant would have to serve at least 15 years before he would

be eligible for a parole evaluation. The court continued: “But depending upon that

parole evaluation, you may or may not be released from prison. If you are ever released

from prison, you will be on parole for the rest of your life. It’s a life parole tail. So it’s

important to me that you understand that. Do you understand what I just explained to

you?”

        Defendant responded, “yes, I do.” He then stated that it was his desire to proceed

with the stipulated plea agreement.

        Thereafter, the court went over the plea form. Defendant acknowledged that he

had initialed, dated, and signed the form; and that prior to doing so, he had read and

understood all the rights he was waiving and the consequences of pleading guilty,

including the lifetime registration requirement. The court asked, “were you able to fully

discuss it with your attorney?” Defendant replied, “yes.” When the court asked if

defendant had any additional questions for his attorney or for the court related to the

terms and conditions of the plea agreement, defendant replied, “no, your Honor.”

Defendant then entered a plea of guilty as to counts 1 and 4. The court then described the

acts pertaining to counts 1 and 4, and asked defendant if it was true that defendant

committed these acts. Defendant replied “yes” as to both counts. He also agreed that

count 1 occurred in September of 2012, and that both counts occurred in Riverside

County.




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       The court found that defendant had knowingly and intelligently waived his

statutory and constitutional rights; the plea was free, knowing, and voluntary; and there

was a factual basis for the plea to each count. The court then accepted the guilty pleas as

to counts 1 and 4, and found defendant guilty as charged as to those counts. The court

ordered a probation report to be prepared.

       On January 31, 2014, in an in-chambers discussion, defense counsel informed the

trial court that defendant wanted to file a motion to withdraw his plea based on

ineffective assistance of counsel (IAC), and wanted counsel to be removed as defense

counsel for defendant. The court held a Marsden2 hearing; it denied defendant’s request.

Thereafter, in open court, the court asked counsel if there was any other basis upon which

to proceed with a motion to withdraw defendant’s plea. Counsel responded there was

not. The court then proceeded to sentencing.

       The court stated that it had read and considered the probation report. Based on the

plea agreement, the court sentenced defendant to 15 years to life on count 1, and imposed

the midterm of eight years on count 4, to be served concurrently with the sentence on

count 1. The court informed defendant of other conditions, including AIDS testing, DNA

analysis, various fines and fees, and a lifetime sex offender requirement. The court

reserved jurisdiction on any victim restitution per section 290.3. The court then

dismissed counts 2, 3, and 5 in the interest of justice.




       2      People v. Marsden (1970) 2 Cal.3d 118.

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       On March 26, 2014, through counsel, defendant filed a timely notice of appeal

challenging the validity of the plea or admission. Attached to the notice of appeal was a

request for certificate of probable cause. Defense counsel stated:

       “Defendant requested a Marsden hearing on the date of sentencing. The defendant

wished to withdraw his plea and proceed to trial. Defendant disclosed confidential

information at the Marsden hearing to support his position that he should be permitted to

withdraw his plea. The court conducted the Marsden hearing and considered the

defendant’s testimony. The court denied the Marsden motion. The court further would

not permit the defendant to withdraw his guilty plea. The court sentenced the defendant

to the term specified in the plea agreement. It is defendant’s position that he did not

receive the effective assistance of counsel, as detailed in his Marsden Motion. [¶]

Defense counsel presented this Request for certificate of probable cause to Judge Rushton

with the above paragraph only and was instructed to file it with the court clerk for his

review.”

       The court granted defendant’s request for a certificate of probable cause.

       On April 1, 2014, defendant filed another notice of appeal in pro per. Attached

was another request for a certificate of probable cause. Defendant wrote:

       “There are several reasons that I would like to make an appeal on my plea. First, I

served in the Marines and was involved in severe combat. This led to much [sic] stress

and anxiety. I believe that I was never properly evaluated for my post traumatic stress

disorder (Veterans Affairs has records of my pre-incarceration diagnosis). Prior to my


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plea and this affected my decision making abilities and only after my plea was I

evaluated by the Riverside County/Jail Psychiatrist. Psychiatrist seen and diagnosed me

with PTSD, severe anxiety and ultimately prescribed medication (Zoloft) with the

aforementioned, I believe my Public Defender misguided and misinformed me as to the

plea I entered. He pressured and rushed me into a decision which I did not fully

comprehend nor understand in my state of duress, high stress and anxiety. Lastly,

English not being my first language also played a role (translator was never offered) and

both Public Defender and Judge were clearly notified of this along with stating that I had

to this point not been properly evaluated, after my motion for appeal was denied. The

plea entered had false and misinformed information. I believe as an alternative to

imprisonment I need evaluation and proper treatment for mental health.

         Again, the trial court granted defendant’s request for a certificate of probable

cause.

                                               II

                                 STATEMENT OF FACTS

         As to count 1, defendant admitted that on or about September 1, 2012, he engaged

in an act of sexual penetration by force, violence, duress, fear, menace or threat upon

Jane Doe, a child who was under the age of 14 and seven years younger than defendant.

         As to count 4, defendant admitted that on or about January 2013, he committed a

lewd and lascivious act upon the body of Jane Doe, who was under the age of 14, by use




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of force, violence, duress or menace of fear or bodily injury, with the intent of arousing

or appealing to or gratifying the lust, passions and sexual desires of himself or the child.

                                              III

                                      ANALYSIS
       After defendant appealed, and 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 to

undertake a review of the entire record.

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

has done so. On July 22, 2014, defendant filed a two-page handwritten brief. In

his brief, defendant essentially argues that appellate counsel rendered IAC.

       In order to establish a claim of IAC, defendant must demonstrate, “(1) counsel’s

performance was deficient in that it fell below an objective standard of reasonableness

under prevailing professional norms, and (2) counsel’s deficient representation prejudiced

the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings,

defendant would have obtained a more favorable result. [Citations.] A ‘reasonable

probability’ is one that is enough to undermine confidence in the outcome. [Citations.]”

(People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland

v. Washington (1984) 466 U.S. 668; accord, People v. Boyette (2002) 29 Cal.4th 381,

430.) Hence, an IAC claim has two components: deficient performance and prejudice.

(Strickland v. Washington, supra, at pp. 687-688, 693-694; People v. Williams (1997) 16

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Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma

(1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim

fails. When a claim of ineffective assistance is made on direct appeal, and the record

does not show the reason for counsel’s challenged actions or omissions, the conviction

must be affirmed unless there could be no satisfactory explanation. (People v. Pope

(1979) 23 Cal.3d 412, 426.)

       In this case, defendant appears to be claiming that his trial counsel’s performance

was deficient because his counsel coerced defendant into accepting the plea agreement.

Defendant argues that he was suffering from anxiety and post-traumatic stress disorder at

the time he entered the plea agreement. The mental illnesses, however, were not

diagnosed.

       We have reviewed the record to address defendant’s contention. We note that

defendant raised the exact issues at the Marsden hearing. His counsel told the court:

“Your Honor, [defendant] had told me several weeks ago that he wanted to withdraw his

plea. I met with him at the jail, and he believes that he received ineffective assistance of

counsel and that he should not have pled guilty, that he is actually innocent of the crime,

and that made me believe that we should have a Marsden hearing because that’s the

process to start potentially withdrawing his plea.”




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       Defendant addressed the court as follows:

       “Okay. I had a struggle when I first made a decision due to the fact that I was

diagnosed with PTSD from the Marine Corps, from the V.A. I’ve been - - I went to

combat back in 2009. I was never evaluated for mental health, and I was never given any

advice about any Veterans Court. Now, I find out, after I made the pleading, I went and

checked out mental health, and they evaluated me, and they are giving me antidepressant,

antianxiety, and a stress pill which is called Zoloft, and I’m also getting with them - - I’m

supposed to get some counseling.”

       When the court asked what his concerns had “to do with anything that we’re

dealing with in our case[,]” defendant responded: “I feel like I was not really told about

the mental health care evaluation or any Veterans Court, where I could have maybe

waited to see if that would apply instead of making my decision, sir.”

       The court, defendant and his counsel then discussed the Veterans Court and how

defendant’s case could have been handled there. The court mentioned the seriousness of

the charges against defendant. The court commented: “This case was never - - I would

have never sent this to Veterans Court, Mr. Vasquez. This is the kind of case where, if

you are convicted, you are going to do life or more. If you are acquitted, you are

acquitted and you don’t have anything to worry about. It’s highly unlikely that there is

going to be a probationary outcome of this case if you were found guilty. So it’s not

really one of those cases for which Veterans Court would be in the ball game. Okay. [¶]

Be that as it may, that’s a concern that you have. You wish you would have been referred

to Veterans Court. Given the nature of the charges, Veterans Court is not the kind of

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court where this sort of case would go. Okay. But I’m still hearing and listening to what

you have to say. . . ”

       The court mentioned that during a polygraph interview with the police, defendant

made incriminating statements that led to his arrest. Therefore, the court encouraged the

parties to resolve the case instead of going to trial.

       Thereafter, the court discussed with defendant his options for rehabilitation. In

response to the court’s question about what defendant would have attended rehabilitation

for, defendant stated, “I don’t know. Maybe they are the ones that’s going to evaluate me

and find out what’s the right diagnosis with my posttraumatic stress disorder.”

       Defendant then went on to state that he was pressured by his attorney to sign the

plea agreement. When the court indicated he went over the plea agreement with

defendant, defendant stated that he “was in shock” and “just didn’t care at the moment.”

The defendant, when asked, also confirmed that he reviewed the plea form and stated that

he had read it and understood it.

       Defense counsel then testified and stated that he believed that defendant would be

convicted from the victim’s and defendant’s statements. Defense counsel stated, “In

context, it seemed to me like a slam dunk. That was my perspective. That was what I

conveyed to him. That was, in short, the pressure I was putting on him, was I thought we

were between a rock and a hard place.” Defense counsel then noted that it appeared that

defendant agreed to plead guilty in an effort to protect his family and the victim.




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       The court summarized the testimonies of both defendant and defense counsel. The

court stated – “[b]ased on all of that and what I knew about the case and the fact that I

encouraged these discussions, it seems to the Court that [defense counsel] did behave in a

professional and appropriate manner. He knew his case inside and out. He felt that he

didn’t have a great case to put in front of the jury, and he wanted to limit [defendant’s]

liability and [his] exposure. And it seems to the Court that that is more than adequate

representation. He worked very hard on [defendant’s behalf].” The court stated that

defendant failed on his IAC claim in that defendant did not make a “substantial showing

that appointed counsel failed to provide adequate representation[,]” and denied

defendant’s Marsden motion based on an IAC claim.

       We agree with the trial court and based on the above, we cannot find that defense

“counsel’s performance was deficient in that it fell below an objective standard of

reasonableness under prevailing professional norms.” (People v. Dennis, supra, 17

Cal.4th at p. 540.) Hence, defendant’s IAC claim has failed to meet the deficient

performance component.

       We have examined the entire record and are satisfied that no arguable issues exist,

and that defendant has, by virtue of counsel’s compliance with the Wende procedure and

our review of the record, received adequate and effective appellate review of the

judgment entered against him in this case. (People v. Kelly (2006) 40 Cal.4th 106.)




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                                     IV

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               RICHLI
                                                        J.

We concur:


McKINSTER
             Acting P. J.


MILLER
                       J.




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