(Super. Ct. No. LF011557B)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jorge Armondo Otero pleaded guilty to second degree commercial burglary (Pen. Code, § 459)*fn1 and admitted a gang enhancement (§ 186.22, subd. (b)(1)(B)) in exchange for a stipulated sentence of six years in state prison and dismissal of five remaining counts and various enhancement allegations. The trial court sentenced defendant to six years in state prison in accordance with the terms of his plea agreement.
Having obtained a certificate of probable cause, defendant appeals, contending his federal constitutional rights to due process of law and effective assistance of counsel were violated because during the plea proceedings the trial court misadvised him as to his exposure on one of the dismissed counts and his counsel failed to correct the error. He further contends the errors were not harmless, and that the matter should be remanded and defendant afforded the opportunity to withdraw his plea.
We shall conclude that on this record defendant cannot establish he was prejudiced by either the trial court's misadvisement or counsel's failure to correct the error, and that defendant's remedy is a petition for writ of habeas corpus. Accordingly, we shall affirm the judgment.
A recitation of the facts underlying the charges is not necessary to resolve the issues raised on appeal. Accordingly, we summarize only the relevant procedural facts.
Defendant was charged in an information with attempted murder (§§ 187, 664--count 1); first degree residential burglary (§ 459--count 2); grand theft of a firearm (§ 487, subd. (d)--count 3); shooting at an occupied vehicle (§ 246--count 4); evading a peace officer with wanton disregard for the safety of persons or property (Veh. Code, § 2800.2--count 5); and participation in a criminal street gang (§ 186.22, subd. (a)--count 6). It was also alleged that defendant committed counts 1-5 for the benefit of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)) and that a principal intentionally and personally discharged a firearm in the commission of count 1 (§ 12022.53, subds. (c), (e)(1)).
At the change of plea hearing, defendant's counsel advised the trial court that defendant was willing to plead guilty to second degree commercial burglary and "would take five years," but the deputy district attorney "wants six." After the deputy district attorney confirmed his intent to revoke the offer and set a trial date if the offer was not accepted that day, the trial court advised defendant in relevant part: "[I]f you go to trial and a jury finds you guilty of attempted murder, with a gang enhancement, you could be looking at an additional -- well, the attempted murder is up to nine years. And the gun enhancement's an additional twenty years. The gang enhancement on this case is also ten years. [¶] So you're looking at potentially spending, if not the rest of your life, until you're a very old man in prison." The court also explained that "the DA's Office is offering you six years. You would end up picking up one strike. You have a total of 592 days credit. You're probably looking at doing another year and a half to two years in prison. So that's what you got to weigh."
Thereafter, defendant conferred with his counsel and accepted the offer, pleading guilty to count 2 (second degree commercial burglary)*fn2 and admitting the gang enhancement in exchange for a stipulated sentence of six years and dismissal of the remaining counts and enhancement allegations.
Defendant apparently did not discover the trial court's alleged error or trial counsel's purported ineffectiveness until after judgment was rendered. Accordingly, he did not ...