IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
August 25, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JORGE ARMONDO OTERO, DEFENDANT AND APPELLANT.
(Super. Ct. No. LF011557B)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Otero
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 move to withdraw his plea in the trial court.*fn3
Defendant contends 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 count 1 and his counsel failed to correct the error. The People respond that defendant's claim must "be denied on direct appeal because there is no evidence in the record to establish that he suffered any prejudice." We agree with the People.
As a preliminary matter, it is undisputed that the trial court misadvised defendant that he could be sentenced to 39 years in state prison on count 1. While the court was correct as to the maximum sentences for attempted murder (9 years for attempted murder--§§ 190, subd. (a); 664, subd. (a)), the firearm enhancement (20 years--§ 12022.53, subds. (c), (e)(1)), and the gang enhancement (10 years--§ 186.22, subds. (b)(1)(C)), defendant was not subject to the imposition of the gang enhancement in addition to the firearm enhancement because it was not alleged that he personally used or discharged a firearm in the commission of the attempted murder. (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47 Cal.4th 583, 590 ["A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an 'enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53."].) Because defendant was not alleged to have personally used or discharged a firearm in the commission of the attempted murder, he was not subject to the 10-year gang enhancement set forth in section 186.22, subdivision (b)(1)(C). Thus, defendant's maximum possible sentence on count 1 was 29, not 39, years.
Where a defendant is misadvised by the trial court as to his potential maximum sentence if he went to trial, he is entitled to relief only if he establishes a reasonable probability that he would not have entered his guilty plea had the trial court provided proper advice. (See People v. Miralrio (2008) 167 Cal.App.4th 448, 459-461.) Likewise, where a defendant contends that ineffective assistance of counsel induced his guilty plea, he must "establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, [he] would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.) "A defendant's statement to that effect is not sufficient. Rather, there must be some objective showing." (In re Vargas (2000) 83 Cal.App.4th 1125, 1140.)
On this limited record, defendant cannot establish a reasonable probability that he would have insisted on going to trial had he been correctly advised that the maximum possible sentence on count 1 was 29, rather than 39, years.
First, the circumstances of the plea do not support such a finding. In exchange for his plea, defendant received a six year prison sentence and dismissal of the remaining counts and enhancement allegations. Absent his plea agreement, he was subject to a term of 29 years on count 1 alone, not to mention the additional counts and enhancement allegations.
Second, the limited record on appeal does not contain any evidence as to how the misadvisement and counsel's failure to correct it impacted defendant's decision to plead guilty in this case. As discussed previously, defendant apparently did not learn of the trial court's error until after judgment had been rendered, and thus, was precluded from bringing a motion to withdraw his plea below. (§ 1018.) Nor did he otherwise seek relief in the trial court. Accordingly, the record on appeal is devoid of any evidence concerning the impact of the challenged errors on defendant's decision to plead guilty.
Because such evidence is outside the record on appeal, defendant's proper remedy is a petition for writ of habeas corpus. (In re Harris (1993) 5 Cal.4th 813, 825, 828.) Habeas corpus is the proper remedy to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights. (Id. at p. 825.) "Habeas corpus may . . . provide an avenue of relief to those unjustly incarcerated when the normal method of relief--i.e., direct appeal--is inadequate. Unlike review on direct appeal, habeas corpus does not simply inquire into the correctness of the trial court's judgment. The scope of habeas corpus is more limited. Although the writ of habeas corpus is directed against the custodian of one who is illegally confined, it will reach out to correct errors of a fundamental jurisdictional or constitutional type only." (Id. at p. 828, fn. omitted.)
Finally, we pause to note that while defendant may pursue his claims in a petition for writ of habeas corpus, he faces a heavy burden in demonstrating a reasonable probability that he would not have pleaded guilty but for the alleged errors insofar as he faced up to 29 years in state prison if convicted of count 1 alone, and he received six years and dismissal of the five remaining counts and enhancement allegations as a result of his plea.
The judgment is affirmed.
We concur: HULL , J. HOCH , J.