Filed 11/27/13 P. v. Montelongo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ROBERT CANO MONTELONGO, Defendant and Appellant. D063233

(Super. Ct. No. SCN301334)

APPEAL from a judgment and order of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Sean F. Leslie for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant A ttorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys Genera l, for Plaintiff and Respondent. In exchange for what th e guilty plea form indicate d was a stipulated prison sentence of 15 years to life plus 10 years, Ro bert Cano Montelongo pleaded guilty to the murder of Stephen Board in violation of Penal Code section 187, subdivision (a)2 (undesignated statutory references will be to the Penal Code), and admitted a gun use enhancement allegation (§ 12022.53, subd. (b)). 1 After new counsel was appointed to repr esent him, Montelongo filed an opposed motion to withdraw both his guilty plea and his admission of the g un use allegation based on his claim that his former counsel hurried hi m into accepting the plea bargain and, as a consequence, he mistakenly believed he woul d be sentenced to a state prison term of 15 years, not a life term. Followi ng a hearing, the court denied the motion. The court then sentenced Montelongo to a state prison term of 15 years to life for the murder conviction plus 10 years for the gun use enhancement. On appeal Montelongo ch allenges the order denying his motion to withdraw his guilty plea and his admission of the gun use allegation, cont ending (1) the court erred in denying his motion because his plea was involuntary and the product of duress, and (2) his former attorney rendered prejudicially ine ffective assistance of counsel. For reasons we shall explain, we reject these conten tions and affirm the order and judgment.

1 One of Montelongo's two codefendants , Benjamin Soria, pl eaded guilty to one count of voluntary manslaughter ; and admitted allegations that he committed the crime to further criminal conduct by gang members, and that he was vicariously armed with a firearm. He was sentenced to a state prison term of seven years eight months. Montelongo's other codefendan t, Eulise Solano, pleaded guilty to the same charges and agreed to testify against Montelongo.3 FACTUAL BACKGROUND 2 On January 2, 2012, in the late aftern oon, police were called to an Oceanside house where they found Stephen Board, a documented member of the Crook Mob Gangster Crips gang, dead from a single gunshot to the back of his head. The area where Board was killed was known to be claimed by Varrio Mesa Locos, a Hispanic gang who had a long-standing rivalry w ith Black gang members. Witnesses reported observing four "Mexic ans" walking towards Board and asking him, "What's up fool?" Board ye lled, "Oh shit he got a pistol," and then ran in an attempt to escape. Board was then shot in the back of his head. A police investigation identifie d Montelongo, Solano, and Soria

─ all members of the Varrio Mesa Locos gang as suspects in th e shooting. Following his arrest for a probation violation, Montelon go admitted he saw the shooting, but claimed he was not involved. During a police in terview, Soria indicated Montelongo was the shooter.
DISCUSSION Montelongo claims the court erred in denying his motion to withdraw his guilty plea and his admission of the gun use allega tion because his plea was involuntary and the product of duress. He also claims his former attorney rendered inef fective assistance of counsel because the attorney led him "to believe that if he took the deal he would only serve a maximum of [15] years," counsel "urg ent[ly] insiste[d]" that he accept the plea

2 The following brief summary of the fa cts is taken from the probation officer's report because Montelongo entered his guilty plea during trial.4 offer, and "the hastiness of the proceedings resulted in a coerced plea of guilty." We reject these claims.
A. Procedural Background
1. Montelongo's guilty plea On August 15, 2012 , during trial, Montelongo w ithdrew his not guilty plea, pleaded guilty to one count of murder as charged in count 1, and admitted a gun use enhancement allegation (§ 120 22.53, subd. (b)). With the a ssistance of his appointed counsel, Ricardo D. Garcia, Montelongo execut ed a guilty plea form , which indicated he had not been induced to enter the plea by any promise or representation, except: "Stip 15-life plus 10 years." With his initials, Montelongo acknowledged he understood the "maximum punishment" he could receive as result of his plea was "25 years imprisonment or imprisonment plus a te rm of mandatory supervision." In court, Montelongo indicated he wished to plead guilty to count 1 and the gun use allegation. He admitted he signed and initialed the plea form after discussing the form with his attorney. He also indicated he had no questi ons about the contents of the form, and Garcia had answer ed any questions he had in going over the form. The following exchange occurred among the court, Montelongo, and Montelongo's counsel, Garcia: "[The Court:] Paragraphs one and two comprise the plea agreement, which indicates you're going to enter a plea to count [1,] a violation of Penal Code section 187. You're going to admit an allegation of [section] 12022.53[, su bdivision] (b) and the stipulated sentence is 15 years to life plus ten years ; is that your full understanding of the plea agreement?5 "[Montelongo:] Yes. "[The Court:] Has anyone made any other promise or agreement with you other than what I just read to you? "[Montelongo:] No, sir. [¶] . . . "[The Court:] I'm obligated by law to tell you the maximum possible consequences. The plea agreement we know is 15 plus ten

. The maximum, technically under the law, can be higher. . . . [¶] . . . [¶] . . . Do you understand all of that? "[Montelongo:] Yes. "[The Court:] Have you had suffici ent time to discuss this case with your attorney and make him aware of everything you know about the case? "[Montelongo:] Yes. "[The Court:] Mr. Garcia, did you advise your client of all his rights, possible defenses to the char ges, the consequences of his plea and the admission? "[Garcia:] I have. "[The Court:] Do you jo in in the waiver of the rights and the entry of the plea? "[Garcia:] One mo ment, Your Honor. "[The Court:] Okay. "[Garcia:] Yes, Your Hono r, I do." (Italics added.) Montelongo indicated he had not been not threatened or coerced into pleading guilty and he was pleading guilty freely and voluntarily becaus e he was guilty. He also indicated he had no questions about the form or anything discussed in court.6 Montelongo then pleaded guilty to count 1 and admitte d the firearm allegation. The court accepted the plea and admission, fi nding Montelongo unders tood the nature of the proceedings and the consequences of his plea. The following month, Garcia was relieve d as Montelongo's counsel and Sean Leslie was substituted as hi s new counsel of record.
2. Montelongo's motion to withdraw his plea Montelongo thereafter filed a motion to w ithdraw his guilty plea. In his motion, Montelongo asserted that when he pl eaded guilty and adm itted the enhancement allegation, he did not un derstand that he was pleading to a prison term of 15 years to life, and "would not have done so if properly advised." Rather, he "believed he was accepting a 15 year sentence and would be released from custody when he was 35 years old." Montelongo also claimed he di d not have enough time to cons ider the prosecutor's plea offer because Garcia told hi m to "hurry up" and that he "didn't have much time." The prosecutor's written opposition argue d that Montelongo's plea was not the result of duress; it was vol untarily and freely made. At the hearing on his motion during the sentencing proceeding, Montelongo testified that from the time of his arraignm ent until his trial, he only saw his attorney, Garcia, three times. Montelongo stated that Ga rcia told him during trial that he only had "a matter of minutes" to accept a plea deal a nd he should take the d eal because he would be "out" when he was 35 years ol d. Prior to that day, the prosecutor's offer was 25 years to life. According to Montelongo, when Garcia spoke to him about the change of plea, he said he requested some time to think about it and discuss the offer with his family.7 Garcia told him he had to hurry up, and he was not allowed to speak to his parents before pleading guilty. Montelongo testified he "felt overwhelmed and didn't know what to do." He stated that Garcia only spent "a minute or two" discussing the plea form with him and indicated he did not know what the word "Stip" referred to. Montelongo also stated th at while the judge was going through the plea form with him, he was relying on his lawyer, who would no d and say, "Yes." He indicated that he did not understand what the judge meant when he said "Stip to 15 years to life." Montelongo claimed his lawyer said he would be out of prison in 15 years, and this was the only reason he pleaded guilty . He indicated he would no t have pleaded guilty to the murder count had he known there was a "life charge or a life consequence." During cross-examination, Montelongo i ndicated he had never heard anyone use the term "stip" during the eight months he was in jail. He acknowledged that he initialed the plea form; that the fo rm stated 15 years to life, plus 10 years; that the form stated he understood the maximum punishment was 25 years imprisonment plus a term of mandatory supervision; and that he coul d get lifetime parole. Montelongo further acknowledged he said "[y]es" when the judg e asked him whether he understood that the stipulated sentence was 15 years to life, plus 10 years. The prosecution called Montelongo's former counsel, Garcia, to testify. Garcia testified that he spent about 20 hours discu ssing the case with Montelongo before trial. He indicated that he explained the settlement offers to Montelon go and that he also explained in plain English the difference between an indeterminate life term and a determinate term that is "a st raight number of years." Garcia stated he discussed with8 Montelongo what a "life" te rm meant on three or four occasions. Montelongo never communicated any difficulty or confusio n understanding this distinction. Garcia also testified that prior to tria l, the prosecutor had offered to settle the matter for a sentence of 15 years to life, pl us 10 years, which he had explained to Montelongo, who rejected the offer. Garcia indicated that matters arose during trial which he believed negatively impacted his case , so he discussed resolving the matter with the district attorney's office. He conv eyed the offer to Mo ntelongo, who never communicated any difficulty in understanding the possible sentence. He explained the concept of a stipulated sentence and a "stip" to Montelongo, who appeared to understand. Garcia further testified he never told Mo ntelongo he would be out of prison after 15 years when he was 35 years ol d. He did tell Montelongo th e deal needed to be done immediately. They went over the change of plea form together and he reviewed the entire form with Montelongo "i n detail." Montelongo did not communicate any failure to understand nor did he i ndicate anything that would have led Garcia to believe that Montelongo thought he would be ge tting out of prison in 15 years.

a. Ruling After hearing the testimony and argumen ts of counsel, the court denied Montelongo's motion. The court found th ere was "no doubt" that Montelongo knew from the outset that he was facing a life sentence. The court noted that during the discussion of the plea agreement he had asked Montelo ngo whether he had any questions, and Montelongo said, "No." Further, when M ontelongo was asked whether he understood the9 plea agreement, which was a stipulated senten ce of 15 years to life plus 10 years, Montelongo responded, "Yes." The court then stated: "There's no doubt in my mind at the time he entered the plea he knew that it was a life term case. "The implication that Mr. Garcia fo rced him or coerced him into the plea, rushed him into the plea, I fi nd not to be credible. One, the incidents that gave rise to the Pe ople [being] willi ng to extend an offer, as indicated to by both Mr. Garcia and by the minutes of the court, show those events occurred pr ior to the noon br eak. In fact, we recessed the jury early, at 11:47 a.m. "So that when during the plea itself, at page five, Mr. Montelongo was asked, have you had sufficient time to discuss this case with your attorney and make him aware of everything you know about the case? He responded yes. And finally , which is at least part of the change of plea process that I use, I specifically asked him, starting at page 28—on line 28, excuse me, on page five, and going through to page six: Mr. Montelongo, has an yone threatened you or threatened anyone near or dear to you to try to force you or coerce you to plead guilty? He said no. "And then, before I actually took the plea, I finished up with, do you have any questions at all about an ything on the form or anything we discussed here in court? He responded no. "I find his responses then to be cr edible. Therefore, the motion to withdraw the plea is hereby denied." The court then sentenced Montelongo pur suant to the plea ag reement to a state prison term of 15 years to life plus 10 y ears. Montelongo's appeal followed.
B. Applicable Legal Principles Section 1018 provides that, "[o]n application of the de fendant at any time before judgment . . . , the court may . . . for a good cause shown, permit the plea of guilty to be10 withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice."
In People v. Weaver (2004) 118 Cal.App.4th 131, 145-146, this court explained the general legal principles that apply to a defendant's motion to withdraw a guilty plea: "A defendant who seeks to wit hdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] . . . 'Good cause must be shown for such a withdrawal, based on clear and convincing eviden ce. [Citation.]' [Citations.] 'To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.]' [Citation.] 'The burden is on the defendant to present clear and convincing eviden ce the ends of justice would be subserved by permitti ng a change of plea to not guilty.' [Citation.] "'When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]' [Citation.] 'Guilty pl eas resulting from a bargain should not be set aside lightly and fi nality of proceedings should be encouraged.'" "A plea may not be withdrawn simply because the defendant has changed his mind." ( People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) "The fact that [a defendant] may have been persuaded, or wa s reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn." ( People v. Ravaux (2006) 142 Cal.App. 4th 914, 919, citing People v. Urfer (1979) 94 Cal.App.3d 887, 892.) On appeal, we will not reverse a tria l court's decision to grant or deny a defendant's motion to withdraw a guilty plea unless an abuse of the court's discretion is11 clearly shown. ( People v. Superior Court ( Giron ) (1974) 11 Ca l.3d 793, 796; People v.
Ravaux , supra , 142 Cal.App.4th at p. 917.) We "must adopt the trial court's factual findings if substantial evid ence supports them." ( People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) A trial court abuses its discretion if it "exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice." ( People v. Shaw (1998) 64 Cal.A pp.4th 492, 496.) A criminal defendant is constitutionally en titled to effective assistance of counsel. (U.S. Const., 6th Amend.; Ca l. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Pope (1979) 23 Cal.3d 412, 42 2, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To show denial of the right to effectiv e assistance of counsel, a defendant must show (1) his counsel's performance was belo w an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. ( Strickland v. Washington, supra, 466 U.S. at pp. 687, 691-692; People v.
Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Pope, supra , 23 Cal.3d at p. 425.) To show prejudice, a defendant must show a reasonable probability th at he would have received a more favorable result had his coun sel's performance not been deficient. ( Strickland , at pp. 693-694; Ledesma , at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." ( Strickland , supra , 466 U.S. at p. 694.)12 C. Analysis We first reject Montelongo's claim that his plea was involuntary and the product of duress, and, thus, that the court abused its discretion in denying hi s motion to withdraw his guilty plea and his admission of the gun us e allegation. We conclude substantial evidence supports the court's implied fact ual determination that when Montelongo entered his plea, he was not operating under mistake, ignorance, duress, or "'any other factor overcoming the free exercise of his free judgment'" ( People v. Weaver , supra , 118 Cal.App.4th at pp. 145-146); and, thus, Montelongo has fa iled to meet his burden of making a clear showing of abuse of discretion. Both in the change of plea form and orally at the hearing on his motion in re sponse to the court's questions, Montelongo indicated he understood that, in exchange fo r his plea, he would be sentenced to a prison term of 15 years to life plus 10 years. He also indicated in his testimony that he had not been not threatened or coerced into pleading guilty and he was pleadi ng guilty freely and voluntarily because he was guilty. In his testimony, Montelongo's former counsel Garcia stated that he went over the change of plea form with Montelongo and revi ewed the entire form w ith him "in detail." Garcia further testified that although he did tell Montelongo the plea deal needed to be done immediately, he never told Montelongo he would be out of prison after 15 years when he was 35 years old. After reviewing the totality of the circum stances, we conclude the court acted well within its discretion and properl y denied Montelongo's motion to withdraw his guilty plea and admission of the gun us e enhancement allegation.13 We also reject Montelongo's related claim that Garcia rendered ineffective assistance of counsel by leading him "to believ e that if he took the deal he would only serve a maximum of [15] years," and by "urg ent[ly] insist[ing]" th at he accept the plea offer in such a way that "the hastiness of the proceedings resulted in a coerced plea of guilty." Substantial evidence establishes that Garcia spen t about 20 hours discussing the case with Montelongo prior to trial. Garcia indicated in his testimony that he conveyed all settlement offers to Montelongo, an d explained to him th e difference between indeterminate and determinate terms. Garcia te stified that prior to trial, the prosecutor had offered to settle the matter for a sentence of 15 years to life, plus 10 years, and he had explained this offer to Montelongo, who rejected it. Garcia also stat ed that on three or four occasions he discussed with Montelongo what a "life" term meant; and he also explained the concept of a sti pulated sentence and a "stip" to Montelongo, who appeared to understand. As already disc ussed, Garcia testified he ne ver told Montelongo he would be out of prison after 15 years when he was 35 years old. Based on the foregoing record, we conc lude Montelongo has failed to meet his burden of establishing Ga rcia's performance was deficient. (See Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Ledesma , supra , 43 Cal.3d at p. 216.) For all of the foregoing reasons, we a ffirm the judgment and the order denying Montelongo's motion.14 DISPOSITION The judgment and order are affirmed.

NARES, J.
WE CONCUR:

McCONNELL, P. J.

HALLER, J.