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People v. Dillard

California Court of Appeals, Sixth District

February 14, 2017

THE PEOPLE, Plaintiff and Respondent,
JOSEPH LEON DILLARD, Defendant and Appellant.

         Santa Clara County Superior Court, Case No.: C1487274 Hon. Daniel T. Nishigaya Judge

          Attorneys for Plaintiff/Respondent: The People Xavier Becerra Attorney General of California Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Catherine A. Rivlin Supervising Deputy Attorney General. Allan Yannow Deputy Attorney General

          Attorneys for Defendant/Appellant: Joseph Leon Dillard Manisha Daryani Law Offices of Robert Beles

          Grover, J.

         The trial court denied defendant's motion to withdraw a no contest plea to human trafficking of a minor, finding that the probation conditions set forth in Penal Code section 1203.067 were not direct consequences of defendant's plea and thus had not required a pre-plea advisement under Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell). The court denied the motion for the additional reason that defendant failed to establish prejudice. Defendant challenges that ruling, and raises ineffective assistance of counsel as a separate basis for withdrawing the plea. Finding no error, we will affirm the judgment.

         I. BACKGROUND

         A. Arrest, Surrender, and Change of Plea

         Defendant was arrested in June 2014 following an undercover sting operation conducted by the Mountain View Police Department and the FBI. According to the probation report, officers contacted a 16-year-old female offering sexual services through an online advertisement. The minor agreed to meet an undercover officer at a hotel and have sexual relations for $500. She was arrested inside the hotel after making sexual advances toward the officer. Defendant, who drove the minor to the hotel, was approached by officers as he waited in the parking lot. He admitted dropping off the minor and said he was watching out for her. He said he had met the minor online a few months earlier, he could not remember who posted her online advertisement, he knew nothing about her services, and he would never hurt her.

         Defendant was charged with human trafficking of a minor. (§ 236.1, subd. (c).)[1] A bench warrant was issued when he failed to appear for arraignment on the criminal complaint. Represented by retained counsel, defendant surrendered in court ten weeks later and was taken into custody. Three weeks after that, he entered an open no contest plea to the complaint, thereby declining the prosecution's five-year statutory minimum prison term offer. The court indicated that it would suspend execution of an eight-year middle term sentence and place defendant on three years' probation including one year in county jail, subject to “all other legal and appropriate terms and conditions of probation.” Defendant signed a waiver of rights form on which he initialed the following statements: (1) “I understand the court is not required to follow any tentative, indicated sentence[, ]” (2) “If I am placed on probation or mandatory supervision, I understand the Court will impose additional conditions that are reasonably related to the charges to which I am pleading guilty or no contest or to future criminality[, ]” and (3) “I understand I must register, and maintain and update my registration, with the police as a [¶] sex offender - I understand this registration requirement is for life.” Defendant responded affirmatively when the trial court asked whether he read and understood the plea form with counsel's assistance, and whether he understood the potential consequences of the plea as described on the form and discussed in court.

         B. Motion to Withdraw Plea

         When the parties appeared for sentencing, defendant was granted a continuance to seek further advice on the section 290 registration requirements. Shortly thereafter, he retained new counsel who filed a motion to withdraw the plea based on former counsel's failure to inform defendant of the direct consequences of the plea. Defendant argued that former counsel did not advise him of the sex offender program described in section 1203.067, subdivision (b), [2] nor that his housing and internet usage would be restricted by conditions of probation. The district attorney opposed the motion with a declaration from defendant's former counsel, and a hearing was held.

         1. Former Counsel's Testimony

         Counsel testified that he had met with defendant twice, for a total of four hours, a few weeks before defendant surrendered. At those meetings, defendant told counsel about potential criminal charges stemming from a Berkeley investigation where he was allegedly “pimping and pandering the same minor victim.” Defendant had been placed in a drug diversion program in Alameda County in a different case, and he was currently on warrant status in that matter. Defendant expressed fear of incarceration, and his primary objective in meeting with counsel was to strategize the best way to resolve the pending matters with minimal or no incarceration.

         Counsel described defendant's belief that the minor likely would appear in court and testify against him. Given the minor's anticipated cooperation with the prosecution and the possibility of duel prosecutions, the potential for a considerable prison term was a legitimate and serious concern. Defendant asked counsel about a suspended sentence to “hang time over [his] head.” Counsel was not optimistic about that type of disposition, but he agreed to ask for it.

         Counsel informed defendant at both meetings of the mandatory registration requirements under section 290, specifically that (1) it was a lifetime registration requirement, (2) he would be listed in a searchable internet database as a sex offender, and (3) he would be restricted from living next to a park or school. He advised defendant that the court or probation could place restrictions on his internet usage and living arrangement, but he should be able to live with his children. He advised defendant that probation could impose additional onerous requirements, including sex offender treatment and counseling, and that he would have to “jump through hoops” if granted probation, but defendant was not interested in clarifying or further discussing those conditions because he was more concerned with a potential prison sentence. Counsel told defendant he (counsel) would be “king of the world” if they were lucky enough to get probation.

         Counsel spoke with defendant after he was taken into custody, but all defendant was interested in was his release; he did not ask about section 290 registration or sex offender treatment programs. Counsel was not aware that section 1203.067 contained mandatory probation conditions; he did not inform defendant of the sex offender management program requirements, including polygraph testing and waiving the psychotherapist-patient privilege.

         On the plea date, defendant was “happy as a kid in a candy factory” with the indicated grant of probation. Both he and counsel “thought it was a great deal.” Counsel and his intern spent two hours reviewing the plea form in detail with defendant before he changed his plea, and counsel answered each and every question defendant asked. Defendant ...

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