Filed 12/4/13 P. v. Hackworth 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
                                                                     A136560
v.
CHRISTOPHER D. HACKWORTH,                                            (San Francisco City and County
                                                                     Super. Ct. No. SC218026)
         Defendant and Appellant.


         For actions related to a domestic dispute, Christopher Hackworth was charged
with two counts of assault with a deadly weapon, not a firearm (Pen. Code,1 § 245, subd.
(a)(1)); child endangerment (§ 273a, subd. (a)); and contempt of court for violating a
protective or stay-away order (§ 166, subd. (c)(1)). Pursuant to a negotiated disposition,
Hackworth pleaded guilty to one of the counts of assault with a deadly weapon and the
other charges were dismissed. Prior to sentencing, Hackworth moved to withdraw his
plea, arguing, inter alia, that he had not been informed that as a felon he would be
prohibited from owning or possessing a firearm for the remainder of his life. The trial
court denied Hackworth’s motion and sentenced him to three years of probation,
conditioned on serving six months in county jail, plus an additional six-month term for
violating the terms of his release before sentencing.
         Hackworth appeals the denial of his motion to withdraw his plea and asserts the
following as errors: (1) the trial court wrongly determined that the firearms prohibition

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

                                                             1
was a collateral consequence, rather than a direct consequence, of his plea; (2) even if the
court correctly characterized the firearms prohibition, he had demonstrated good cause
for withdrawing his plea; and (3) he was prejudiced by ineffective representation of
counsel. We find no merit in Hackworth’s arguments and affirm the trial court’s denial
of his motion to withdraw his plea.
                                      BACKGROUND
       On April 28, 2012, Andrew Zahnd, the boyfriend of Hackworth’s estranged wife,
was sitting in his parked truck with Hackworth’s son.2 Zahnd saw Hackworth standing
on a nearby pathway, motioning for Zahnd to approach him while saying “Fuck you!”
Hackworth then entered his own vehicle and drove in reverse, closely approaching
Zahnd’s truck before driving onto the sidewalk and leaving the scene.
       On May 7, 2012, the People filed a complaint charging Hackworth with four
counts: (1 and 2) assault with a deadly weapon, not a firearm (§ 245, subd. (a)(1)), a
felony, with the allegation that the offense was committed while on bail or on his own
recognizance (§ 12022.1); (3) child endangerment (§ 273a, subd. (a)), a felony, with the
allegation that the offense was committed using a deadly and dangerous weapon
(§ 12022, subd. (b)(1)); and (4) contempt of court for violating a protective or stay-away
order (§ 166, subd. (c)(1)), a misdemeanor.
       On May 10, 2012, pursuant to a negotiated disposition, Hackworth pleaded guilty
to one of the assault with a deadly weapon charges and the remaining counts were
dismissed. The court issued a domestic violence protective order specifying that
Hackworth have no contact with Zahnd, his wife, or his son. Hackworth was notified that
as long as he was subject to the protective order, he was prohibited from possessing
firearms. Hackworth was also advised that as long as he remained on probation, he
would be prohibited from possessing any weapons. Pending sentencing, the court
released Hackworth on his own recognizance, with the warning that he would face an


       2
        The underlying facts of this case are briefly summarized from the probation
department’s sentencing report.

                                              2
additional six months of incarceration if he violated the terms of release, including the
obligation to return to court for sentencing.
       On June 25, 2012, Hackworth failed to appear for sentencing and the court issued
a bench warrant. On July 2, the court discharged the bench warrant and released
Hackworth on his own recognizance pending sentencing.
       On July 13, 2012, Hackworth filed a motion to withdraw his plea. He claimed that
his plea was not knowing, intelligent, and voluntary because he had not been advised of
the following consequences of his plea: (1) loss of voting rights; (2) conviction for a
“strike” would attach for life, with no “wash-out period”; (3) loss of his driver’s license;
(4) prohibition from owning or possessing firearms for life; and (5) conviction for a
“strike” would prevent him from retaining his job.3
       On August 3, 2012, the court denied Hackworth’s motion to withdraw his plea and
proceeded to sentencing. The court determined that there was no requirement that
Hackworth be advised about the consequences of his plea that were listed in his motion,
stating: “And it’s my determination that the People are correct in their statements to the
court, both orally and in the papers, that the issues you’ve raised are secondary, they’re
collateral. They are not direct, and therefore, do not give rise to a situation in which I am
able to grant your motion.” The court sentenced Hackworth to three years of formal
probation, conditioned on serving six months in county jail. The court also granted the
People’s motion for the imposition of an additional six-month sentence as a result of
Hackworth’s failure to comply with the terms of his previous release, including his
failure to comply with the court’s stay-away orders with respect to his alleged victims.
       Hackworth timely filed a notice of appeal.
                                      DISCUSSION
I. Legal Standard
       A defendant may withdraw his or her plea only upon a showing of good cause
supported by clear and convincing evidence. (§ 1018; People v. Wharton (1991) 53

       3
         The prohibition from owning or possessing firearms for life is the only claimed
defect in advisement that Hackworth is pursuing in this appeal.

                                                3
Cal.3d 522, 585.) Whether to allow the withdrawal of a plea “rests in the sound
discretion of the trial court and a denial may not be disturbed unless the trial court has
abused its discretion.” (People v. Francis (1954) 42 Cal.2d 335, 338; accord, People v.
Castaneda (1995) 37 Cal.App.4th 1612, 1617.)
       When the proposed good cause for withdrawal of a plea involves the failure to
fully advise the defendant about the consequences of the plea, the defendant must also
show prejudice; i.e., the defendant must show that, if properly advised, he or she would
not have entered the plea. (In re Moser (1993) 6 Cal.4th 342, 352.)
       “When a criminal defendant chooses to plead guilty (or . . . no contest), both the
United States Supreme Court and this court have required that the defendant be advised
on the record that, by pleading, the defendant forfeits the constitutional rights to a jury
trial, to confront and cross-examine the People’s witnesses, and to be free from
compelled self-incrimination. [Citations.] In addition, this court has required, as a
judicially declared rule of state criminal procedure, that a pleading defendant also be
advised of the direct consequences of his plea. [Citations.] If the consequence is only
collateral, no advisement is required.” (People v. Gurule (2002) 28 Cal.4th 557, 633-
634.) Collateral consequences are sometimes referred to as “secondary” or “indirect.”
(People v. Robinson (1988) 205 Cal.App.3d 280, 282.) “A consequence is considered
‘collateral’ if it ‘does not “inexorably follow” from a conviction of the offense involved
in the plea.’ ” (People v. Moore (1998) 69 Cal.App.4th 626, 630 (Moore).) “The advice
requirement generally extends only to ‘penal’ consequences [citations], which are
‘involved in the criminal case itself’ [citation].” (Ibid.)
       The following have been found to be direct consequences of a plea: “the
permissible range of punishment provided by statute” (Bunnell v. Superior Court (1975)
13 Cal.3d 592, 605); “the possibility of commitment pursuant to Welfare and Institutions
Code, sections 3050, 3051, or 6302” (ibid.); “registration requirements, if any” (ibid.)—
including the fact that a requirement to register as a sex offender will be for the duration
of the defendant’s life (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1481 (Zaidi); the
possibility of a restitution fine, including its maximum amount (People v. Villalobos


                                               4
(2012) 54 Cal.4th 177); “[p]reclusion from probation consideration” (People v. Caban
(1983) 148 Cal.App.3d 706, 711); the maximum parole period following completion of a
prison term (In re Carabes (1983) 144 Cal.App.3d 927, 932); and a mandatory revocation
of the defendant’s driver’s license (People v. Dakin (1988) 200 Cal.App.3d 1026, 1033).
       Collateral consequences of a plea include: “the possibility of increased
punishment in the event of a subsequent conviction” (People v. Crosby (1992) 3
Cal.App.4th 1352, 1355); the possibility of probation revocation in another case (People
v. Searcie (1974) 37 Cal.App.3d 204, 211); limits on a defendant’s “ability to earn
conduct and work credits while incarcerated” (People v. Barella (1999) 20 Cal.4th 261,
262-263); and the possibility of future commitment under the Sexually Violent Predator
Act (Moore, supra, 69 Cal.App.4th at pp. 630-631).
II. Lifetime Prohibition from Possessing Firearms
       Hackworth maintains that the trial court erred in determing that there was no
requirement that he be advised that his plea entailed the lifetime loss of his right to
possess a firearm. We must address this issue in order to evaluate Hackworth’s argument
that he was not effectively represented by counsel.
       Federal law prohibits any person who has been convicted of a felony from
possessing a firearm or ammunition. (18 U.S.C. § 922(g)(1).) California law also
prohibits a convicted felon from possessing a firearm. (§ 29800, subd. (a)(1).) It is
beyond dispute that once a defendant pleads guilty to a felony and judgment is entered,
the defendant is immediately prohibited from possessing a firearm. The People do not
dispute that this is a lifetime consequence under current law.
       The question before us is whether a lifetime firearms prohibition is a direct
consequence of a defendant’s guilty plea to a felony (assuming the defendant has no prior
felony conviction) or only a collateral consequence. We find no California case that has




                                              5
examined this question, though a number of cases have referred to the firearms
prohibition as a collateral consequence.4
       Hackworth argues that “a convicted felon’s loss of the right to possess a firearm is
not contingent upon his post-conviction conduct or any other variable factor” and is a
consequence that “follows ‘inexorably’ from a defendant’s plea and ensuing conviction
for a felony.”
       The People contend that the consequence of Hackworth’s plea was simply the
possible future use of his current conviction in a later criminal proceeding for possession
of a firearm. Because the possible future use of a current conviction is not a direct
consequence of the conviction (People v. Gurule, supra, 28 Cal.4th at p. 634), the People
argue that the trial court correctly found that a lifetime prohibition from possessing a
firearm was a collateral consequence. This is unconvincing because the People’s
formulation of the consequence of Hackworth’s plea ignores the fact that he suffers an
immediate consequence—making a criminal act of what would otherwise be the free
exercise of a right under the United States Constitution. (U.S. Const., 2nd Amend.;
District of Columbia v. Heller (2008) 554 U.S. 570, 595.)
       While we agree with Hackworth that the firearms prohibition inexorably follows
upon a plea of guilty to a felony, it does not fall under the general rule of being a penal
consequence that is “ ‘involved in the criminal case itself.’ ” (Moore, supra, 69
Cal.App.4th at p. 630; see Cody v. United States (8th Cir. 1972) 460 F.2d 34, 37 [“there
is no indication that Congress intended [18 U.S.C. § 922] to be a punitive, rather than a
regulatory, measure”].)
       Hackworth relies primarily on Zaidi, in which the defendant agreed to plead no
contest to a misdemeanor count of lewd conduct in a public place (§ 647, subd. (a)) in
exchange for the dismissal of more serious counts. (Zaidi, supra, 147 Cal.App.4th at p.


       4
        See People v. Ziegler (2012) 211 Cal.App.4th 638, 651, quoting People v. Ansell
(2001) 25 Cal.4th 868, 872-873; People v. Miller (2012) 202 Cal.App.4th 1450, 1458-
1459; People v. Smith (2003) 110 Cal.App.4th 1072, 1080, quoting Manduley v. Superior
Court (2002) 27 Cal.4th 537, 593 (dis. opn. of Kennard, J.)

                                              6
1474.) The court asked the defendant, “ ‘Do you understand that the Court could also
order you register as a sexual offender pursuant to . . . section 290 if the Probation
Department determines that is appropriate?’ ” (Id. at p. 1476.) The defendant answered
in the affirmative. (Ibid.) At sentencing the court imposed the registration requirement.
(Id. at p. 1477.) The defendant later moved to withdraw his plea, arguing that the plea
was not knowing and intelligent because he had not been informed that registration was a
lifetime requirement and not simply for his term of probation. (Id. at pp. 1479-1480.)
The trial court denied the defendant’s motion. (Id. at p. 1480.)
       The Zaidi court noted prior cases holding that the court had a duty to advise of the
requirement to register as a sex offender and that failure to so advise was error. (Zaidi,
supra, 147 Cal.App.4th at p. 1481.) The issue before the court was the “requisite content
of the advisement regarding sex registration as a direct consequence of a plea.” (Ibid.)
The court concluded that a trial court “must advise that the registration requirement will
be for the duration of the defendant’s life.” (Ibid.) In reaching that determination, the
court commented that “the duty [to advise about the registration requirement] exists
because the ignominy and the duration of the registration requirement make it a
particularly harsh sanction, and only if a defendant is apprised of the duration can he or
she fully appreciate the gravity of the consequence of the plea, so as to make the plea
voluntary and intelligent.” (Id. at p. 1482.)
       Hackworth’s reliance on Zaidi is misplaced. Unlike the firearms prohibition at
issue here, the Zaidi court was dealing with a duty of advisement that was already well
established. The question in Zaidi was not whether there was a duty of advisement, but
whether the fact that sex offender registration was a lifetime requirement must be
included in the advisement. Although the registration requirement, like the firearms
prohibition, is not penal (People v. Hofsheier (2006) 37 Cal.4th 1185, 1197), the firearms
prohibition lacks the important element of “ignominy” that qualifies the registration
requirement as an exception to the general rule that direct consequences are limited to
penal consequences.



                                                7
       Despite the fact that the firearms prohibition is of long standing, Hackworth points
to no case in any jurisdiction that has held the prohibition to be a direct consequence of a
felony conviction, instead of a collateral consequence.5 Because Hackworth has provided
no convincing argument or authority for us to exempt the firearms prohibition from the
general rule that direct consequences are limited to penal consequences involved in the
criminal case itself, we reject Hackworth’s contention that the court erred by finding the
firearms prohibition to be a collateral consequence.
III. Prejudice
       Because the trial court found that Hackworth had failed to show good cause to
withdraw his plea, it did not reach the question of whether Hackworth would have
entered his plea had he been advised of the firearms prohibition. However, the record
provides no basis upon which the court could have found that Hackworth had shown
prejudice.
       Hackworth’s motion to withdraw his plea stated: “. . . Hackworth, through
counsel, has stated under oath in his declaration that he would not have entered into the
plea bargain had he known of the . . . consequences of his plea.” This passage
misrepresents Hackworth’s declaration through counsel, which states the consequences of
his plea for which he received no advisement, but makes no statement that had he been
advised, he would not have entered his plea. When given an opportunity to address the
court at the hearing in which his motion was considered, Hackworth again made no
statement that, had he been advised of the consequences that were the subject of his
motion, he would not have entered his plea.




       5
         This court’s own research from other jurisdictions has disclosed only cases
holding that the firearms prohibition is a collateral consequence to a conviction, or
referring to it as such. (See, e.g., United States v. Bethurum (5th Cir. 2003) 343 F.3d 712,
718; United States v. Amerson (8th Cir. 2010) 599 F.3d 854, 855-856); United States v.
Anderson (S.D.Cal. Oct. 15, 2013, No. 85-CR-252-LAB) 2013 WL 5658828); State v.
Rodriguez (Minn.App. 1999) 590 N.W.2d 823, 825 [finding the firearms prohibition to
be collateral and discussing authority from other states].)

                                              8
       The court lacked not only an avowal from Hackworth that he would not have
entered his plea had he been advised of the firearms prohibition, but also reasons to have
accepted such an avowal, had it been made. Hackworth’s motion contains the assertion
that he owned a firearm when he entered his plea, but no additional information was
provided to the court that would support a finding that firearm ownership was so
important to Hackworth that he would hazard the uncertain result of trial rather than
accept the plea agreement. (See People v. McClellan (1993) 6 Cal.4th 367, 378 [noting
that “the record of the trial court proceedings contains no evidence (nor even an
assertion) concerning the bearing of a registration requirement upon defendant’s decision
to plead guilty”].)
       Hackworth asserts that “his attempt to withdraw his plea prior to the imposition of
sentence . . . establishes requisite prejudice.” We find no support for this proposition,
which would obviate any need for a defendant to make an affirmative showing of
prejudice for a failure in advisement. Hackworth’s reliance on Zaidi, supra, 147
Cal.App.4th at pages 1488-1489, is misplaced. In addition to the Zaidi defendant’s
objection at sentencing and subsequent motion to withdraw his plea, the motion to
withdraw was supported by a declaration that directly asserted prejudice—a factor that is
missing in this case. (Ibid.)
       Accordingly, even if Hackworth had shown good cause, we would have to affirm
the trial court’s denial of his motion because he failed to demonstrate prejudice.
IV. Good Cause
       Hackworth also contends that if, as we have determined, the firearms prohibition
is a collateral consequence of his plea, he nonetheless made a showing of good cause to
withdraw his plea based on the “misadvice” he received.
       We need not reach this argument because of our determination that Hackworth
failed to demonstrate prejudice. We note, however, that Hackworth’s motion to
withdraw his plea provided only two grounds upon which he based his argument for good
cause: (1) that his plea was not knowing and voluntary because he had not been informed
of all the direct consequences of the plea and (2) ineffective assistance of counsel.


                                              9
Hackworth seems now to propose a different ground upon which the trial court might
have found good cause, but it was not a ground presented to the court, so we can find no
abuse of discretion in the court’s failing to consider it.
V. Ineffective Assistance
       Hackworth argues that because of ineffective assistance of counsel he was
prejudiced in that (1) he entered his plea without a full understanding of its consequences
because he failed to receive proper advisements and (2) his motion to withdraw his plea
failed to state the ground that a term of the plea agreement could not be fulfilled.
       Hackworth must show both that his counsel performed deficiently “under an
objective standard of professional reasonableness” and that he was prejudiced by the
result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Hackworth fails to make a
showing of deficient performance in both of his attempts to demonstrate ineffective
assistance.
       Hackworth’s first argument for ineffective assistance of counsel fails because he
makes no attempt to explain why his counsel’s failure to advise him concerning collateral
consequences was deficient under an objective standard of professional reasonableness.
This is not a self-evident proposition and Hackworth provides no reasoning or authority
that would justify our reaching that conclusion. He simply states that the record fails to
show that his plea was knowing and voluntary, a conclusion we must reject because
Hackworth was advised concerning the direct consequences of his plea.
       Hackworth’s second argument for ineffective assistance concerns a prohibition
from possessing weapons as a condition of probation. The People informed the trial
court that Hackworth’s negotiated disposition included a weapons prohibition while on
probation. The court asked Hackworth if he understood this, and he responded in the
affirmative. Hackworth argues that he could have reasonably understood that all
weapons restrictions, including those concerning firearms, would be lifted at the end of
his term of probation. Accordingly, he continues, had his counsel included as a ground
for withdrawing his plea that an element of the plea agreement could not be fulfilled, the
trial court would have had no choice but to grant his motion, because ambiguities


                                              10
concerning the parties’ intentions in regard to a negotiated plea must be construed in the
defendant’s favor (People v. Toscano (2004) 124 Cal.App.4th 340, 345) and the
defendant is entitled to every reasonable doubt concerning interpretation of a plea
agreement (People v. Daugherty (1981) 123 Cal.App.3d 314, 319).
       A trial judge may not impose judgment contrary to the terms of a plea bargain
“without affording the defendant an opportunity to withdraw his guilty plea.” (People v.
Delles (1968) 69 Cal.2d 906, 910.) A trial court should not ratify a promise in a plea
agreement that ignores statutory requirements and may be illusory. (People v. Meals
(1975) 49 Cal.App.3d 702, 708.) Here, Hackworth claims that the requirement that he
possess no weapons during probation contained, as he could reasonably understand it, a
promise that after probation there would be no restriction on his possession of weapons,
and that promise was illusory because it could not be fulfilled.
       We cannot accept Hackworth’s reasoning. Conditions of probation provide the
probationer with notice of what will (and, by exclusion, what will not) form the basis of a
charge that the probationer has violated probation. Under the terms of his plea
agreement, Hackworth agreed that it would be a violation of his probation to possess a
weapon and he does not now argue that this was not his understanding. The only implied
promise was that possession of a weapon after his probation ended would not constitute a
violation of the conditions of his probation. That promise is not illusory. Possession of a
firearm, or any other weapon, after Hackworth is no longer on probation cannot be
prosecuted as a probation violation.
       We conclude that Hackworth’s plea agreement and his conditions of probation
cannot be reasonably interpreted to contain an implied promise that there would be no
independent legal impediment to the possession of a firearm after Hackworth was no
longer on probation. Because Hackworth’s understanding of an implied promise in his
plea agreement was not reasonable, it was not ineffective assistance of counsel for his
counsel to fail to make that argument.




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                                   DISPOSITION
      The court’s order denying Hackworth’s motion to withdraw his plea is affirmed.




                                              _________________________
                                              Brick, J.*


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Richman, J.




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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