Filed 3/20/13 P. v. McClure CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


### IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
HOWIE MALONE M C CLURE, Defendant and Appellant. F064207 & F064445 (Super. Ct. Nos. BF136005A & BF138195A)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kern County. Charles R. Brehmer, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Atto rneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Wiseman, Acting P.J., Kane, J. and Peña, J.2. Appellant Howie Malone McClure pled no contest to discharging a firearm in a negligent manner (Pen. Code, 1 § 246.3, subd. (a)), and in a separate case he pled no contest to felony failure to a ppear (§ 1320.5 ), agreeing to a total term of two years eight months. After entering his plea, appellant ob tained new counsel and moved to withdraw his plea, arguing that he received ineffective assistance of counsel in making his decision to plead to the charges. The trial court heard and de nied the motion, ultimately sentencing him to two years ei ght months as provided for in the plea agreement. Appellant, after receiving a certificate of probab le cause, filed timely notices of appeal in both cases. This court granted a motion to co nsolidate both appeals as they arose from a single plea. On appeal, appellant contends the tr ial court erred in denying his motion to withdraw his plea. He argues he was prov ided ineffective assistance of counsel in making his decision to plead because his coun sel failed to fully a dvise him as to the future consequences of a strike conviction. He further argues his plea was not knowingly and intelligently made. We find appellant’s c ontentions lack merit and therefore affirm the judgment. 2
FACTUAL AND PROC EDURAL HISTORY On March 16, 2011, appella nt was charged in case No . BF136005A w ith willfully discharging a firearm in a negligent manner (§ 246.3, subd. (a)). It was further alleged that he personally used a firearm in the co mmission of the offense. (§ 12022.5, subd. (a).) Appellant posted a bond for the offens e on March 31, 2011. On July 13, 2011, appellant failed to appear in court and his bond was forfe ited. On August 24, 2011, appellant was charged in case No. BF138195A with felony failure to appear (§ 1320.5)

1 All further references are to the Pe nal Code unless otherwise indicated.
2 Appellant additionally argues that this court s hould allow him to withdraw his plea as to the failure to appear case if this court finds he was entitled to withdraw his plea on the negligent discharge of a firearm case. We need not address this contention as we find no error in the denial of the motion to withdraw the plea on the firearm charge.3. and with a special allegation that he committ ed this offense while on bail for an earlier felony offense (§ 12022 .1, subd. (b)). He was subsequen tly charged with a third felony, this time for possession of a controlled subs tance (Health & Saf. Code, § 11377, subd. (a)) in case No. BF138371A. In addition, he was char ged with two misdemeanor offenses and another special allegation that he had committed the felony offense while on bail for an earlier felony offe nse (§ 12022.1, subd. (b)). On September 21, 2011, appellant entere d a no contest plea to the negligent discharge of a firearm charge and the felony failure to appear char ge in exchange for a total prison term of two years eight months. The remaining charges and allegations were dismissed as part of the plea agreement. At that hearing, the prosecutor explained appellant was pleading to a strike offense. Appellant stated he understood. In addition, the court further elaborated on the meaning of a strike conviction as follows: “Do you
understand that a strike offe nse would count against you in the future, so if you did receive additional strikes, it requires you to serve more time in custody in regard to credits? Also three strikes, it’s 25 to life. [¶] Do you understand that ?” Appellant stated
he understood. Later in the hearing, appellant replied affirmatively when asked if he understood “the consequences of pleading to a strike as we have discussed.” Immediately after this statemen t, appellant was asked if he had any questions about his plea, and he replied “No.” Furthermore, appe llant’s counsel agreed that he was confident that appellant understood the “consequences of his plea, including the strike issue.” Prior to sentencing, appellant’s retain ed counsel was relieved and the public defender was appointed. Subsequently, appella nt moved to withdraw his plea. In his motion, appellant argued that he was provided ineffective assistance of counsel because his attorney failed to explain the exact futu re consequences of pleading to a strike offense. In a declaration, appellant st ated that his counsel did not explain the consequences of having a strike conviction on his record, that he had subsequently
learned that a strike conviction would result in the doubling of any future sentence, that4. he would be required to serve future sentences at 80 percent, and ha d he known of these consequences, he would not have entered his plea. The court heard the motion on January 4, 2012. At the motion, the court reviewed the change of plea transcript, noting that appellant had been advised by both the prosecutor and the court that he was pleading to a strike offense. The court also pointed out appellant had executed a wr itten change of plea form. Du ring the hearing, appellant’s prior counsel was asked what advice he had pr ovided to appellant in regard to pleading to a strike. Counsel explained that he advised a ppellant “that the strike wouldn’t affect the sentence on this case; howeve r, any future cases he picked up, the sentences would be enhanced by the strike.” Appellant’s mo tion to withdraw his plea was denied and appellant was sentenced to a total term of tw o years eight months in accordance with his plea agreement.
DISCUSSION Section 1018 allows a trial court to grant a defendant’s request to withdraw a plea for “good cause shown.” Good cause may encompass mistake, ignorance or “any other factor overcoming the exercise of free judgment.” ( People v. Cruz (1974) 12 Cal.3d 562, 566.) A defendant must establish good cause by clear and convincing evidence. ( Ibid .)
The denial of a motion to with draw a guilty or no contest plea rests within the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of a clear abuse of that discretion. ( People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) A. The Court Did Not Err in Denying Appe llant’s Motion to Withdraw His Plea Appellant claimed in the trial court, as he does here, that his counsel provided ineffective assistance by failing to adequately advise him of the consequences of a strike
conviction. He asserts that the failure of his counsel to fully advise him as to all consequences of a strike conviction impacted his decision to enter his plea and that he would not have entered a plea had he been adequately advise d. We find the trial court
did not abuse its discretion in rejecting this contention.5. “Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, unde r both the Sixth Amendment to the federal Constitution and article I, secti on 15 of the California Constitution, to the effective assistance of legal coun sel. [Citations.] ‘It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defe ndant has suffered a constitutional violation giving rise to a claim for relie f from the guilty plea.’ [Citations.] [¶] To establish ineffectiv e assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable pr obability exists that , but for counsel’s failings, the result would have been more favorable to the defendant. [Citations.]” ( In re Resendiz (2001) 25 Cal.4th 2 30, 239, fn. omitted, disapproved on another point in Padilla v. Kentucky (2010) 559 U.S. 356; see also In re Alvernaz (1992) 2 Cal. 4th 924, 934.)
We need not decide whether counsel in this case provide d ineffective assistance of counsel as we find appellant has failed to demonstrate any prejudice from the alleged error. ( Strickland v. Washington (1984) 466 U.S. 668, 697 [“ a court need not determine whether counsel’s performance was deficient be fore examining the pr ejudice suffered by the defendant as a result of the alleged defici encies.... If it is easier to dispose of an ineffectiveness claim on the gr ound of lack of sufficient pr ejudice, which we expect will often be so, that course should be followe d.”].) In order to demonstrate prejudice stemming from inadequate representation in a dvising a defendant to enter a plea, the defendant must establish a reasonable probability that but for the improper advice, he or she would not have pled guilty. ( In re Resendiz , supra , 25 Cal.4th at p. 253.) A defendant’s self-serving assertion that he would not have accepted a proffered plea bargain but would instead have proc eeded to trial must be “corroborated independently by objective evidence. A cont rary holding would l ead to an unchecked flow of easily fabricated claims.” ( In re Alvernaz , supra , 2 Cal.4th at p. 938.) Factors to consider in determining whether a defendant would have rejected a plea include: “‘whether counsel actually and accurately co mmunicated the offer to the defendant; the advice, if any, given by counsel; the dispar ity between the terms of the proposed plea6. bargain and the probable consequences of proceed ing to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was am enable to negotiating a plea bargain.’ ( In re Alvernaz , [ supra , 2 Cal.4th] at p. 938.)” ( In re Resendiz , supra , 25 Cal.4th at p. 253.) The question whether it is reasonably probable a defenda nt would not have pled guilty if properly advised is a factual question. ( People v. Superior Court ( Zamudio ) (2000) 23 Cal.4th 183, 210.) Accordingly, on review we apply the substantial evidence rule. (See People v. Quesada (1991) 230 Cal.App.3d 525, 533.) 3 “[W]e ‘must view the evidence in a light most favorab le to respondent and presume in support of the judgment the existence of every fact the trier could reasonably dedu ce from the evidence.... If the circumstances reasonably justify the trial c ourt’s findings, an appellate court cannot reverse merely because the circumstances mi ght also be reasonabl y reconciled with a contrary finding.’” ( Ibid. ) After a review of the record, we find no abuse of discretion in the trial court’s rejection of appellant’s self-serving statement that he would not have entered his plea had he been advised more fully as to the future consequences of a strike conviction. First, we note the consequences of a st rike conviction are speculative as they rest solely upon appellant’s decision to commit felony offenses in the future. Se cond, the record establishes that appellant was advised numerous times that he was, in fact, pleading to a strike offense. In addition, he was inform ed, at least in a general way, that such a
conviction would have an effect on future se ntences in terms of enhanced punishment
and a limit on the amount of cond uct credits he could accrue. The trial court made a general statement that a strike conviction co uld enhance future sentences, and specifically
noted that it would reduce the amount of credit he could accrue. Further, at the hearing to withdraw the plea, appellant’s prior counsel stated he had advised appellant “that the
strike wouldn’t affect the sentence on this ca se; however, any further cases he picked up,

3 People v. Quesada was superseded by statute on grounds not relevant to this discussion.7. the sentences would be enhanced by the strike.” Considering this re cord, it is apparent that appellant was advised that future convic tions could be enhanced by the plea in the

current case. On appeal, appellant does not seem to dis pute that he was advised that a plea to a
strike would enhance future sentences in so me manner. Rather, he claims that had he known specifically that future felony sentences would be do ubled and that he would be subject to the 20 percent conduct credit limita tion, it would have affected his decision to enter a plea agreement. Howeve r, nothing in the record suppo rts such an assertion. ( In re Resendiz , supra , 25 Cal.4th at p. 253 [defendant’s assertion that “he would not have pled guilty if given competent advice ‘mus t be corroborated inde pendently by objective evidence’”].) We note that appellant, after being told he was pleading to a stri ke offense and that offense would “count against [appellant] in the future,” stated he had no questions regarding his plea. The fact that appellant had no questions about how the sentence could
be enhanced confirms our c onclusion that there is no r easonable probability he would have rejected the plea agreement had he been more fully advised as to the consequences of a strike plea. Moreover, appellant was facing significant pris on exposure on the charges in this case. As to the negligent discharge of a firearm count, he was facing a maximum of three years. 4 The failure to appear charge exposed him to a separate eightmonth term. Furthermore, appellant had the benefit of the dismissal of several other charges and enhancements. The prosecutio n dismissed a possession of a controlled substance charge as well as the two enha ncements for committing new felony offenses while on bail (§ 12022.1). Those charges in creased appellant’s exposure by another four

4 We note that the section 12022.5 enhancement c ould not be imposed on that count as the use of a firearm is an essential element of neg ligent discharge of a firearm. (§ 12022.5, subd. (a); People v. Hansen (1994) 9 Cal.4th 300, 317, ove rruled on another point in People v. Chun (2009) 45 Cal.4th 1172, 1199.)8. years eight months. 5 Taking the cases together, appellant risked a total term as high as eight years four months had he chosen to re ject the plea agreement and go to trial. Appellant does not argue, nor is there anything in the record that in dicates, how he might
have avoided convictions on the charges had he gone to tria l. Further, he would have been subject to the exact sa me strike consequences upon a conviction. Appellant has offered no explanation as to why he would have pleaded not guilty and run the risk of receiving a considerably higher prison term had he been advised more fully of possible future consequence of a strike c onviction. Considering the r ecord as a whole, we find no
abuse of direction in the trial court’s denial of the motion. Indeed, it is apparent from the
record that there is no reasona ble probability that appellant w ould have rejected the plea agreement had he been more fully advised as to the consequences of a strike plea in this

case. B. Appellant’s Plea Was Know ingly and Intelligently Made To the extent appellant argues that hi s plea was not knowingly and intelligently made, we reject the contention.
“When a criminal defenda nt chooses to plead guilty ..., both the United States Supreme Court and [the Califor nia Supreme Court] have required that the defendant be advised on the record that, by pleading, the defendant forfeits the constitutional rights to a ju ry trial, to confront and crossexamine the People’s witnesses, a nd to be free from compelled selfincrimination. [Citations.] In additi on, [the California Supreme Court] has required, as a judicially declared rule of state criminal procedure, that a pleading defendant also be advised of th e direct consequences of his plea. [Citations.] If the consequence is only collateral, no advisement is required.” ( People v. Gurule (2002) 28 Cal.4t h 557, 633–634.) Appellant seems to argue his plea wa s not knowingly and intelligently made
because he was not advised as to the exact future consequences of a strike conviction. It
is well established that failure to advise a defendant about collateral consequences to a plea does not make a plea invalid. Possible fu ture consequences from a strike conviction

5 We note that each of the section 12022.1 enhancements requires a consecutive two-year term. (§ 12022.1, subd. (b).)9. are clearly collateral conse quences of a plea. (See Hill v. Lockhart (1985) 474 U.S. 52, 56 [failure to advise defendant as to pa role eligibility date does not make plea involuntary or unintelligent]; People v. Barella (1999) 20 Cal.4th 261, 267-272 [defendant not entitled to withdraw plea on ba sis of failing to be advised as to limits on
conduct credits due to three strikes law because it is not a direct consequence of the plea]; In re Resendiz , supra , 25 Cal.4th at p. 243, fn. 7 [possibility of future use of conviction to enhance a punishment is colla teral consequence of plea]; People v. Bernal (1994) 22 Cal.App.4th 1455, 1457 [same].) As appellant has made no argument that he was not advised of any direct consequence of his plea, his claim must fail. 6
DISPOSITION The judgment is affirmed.

6 To the extent appellant argues his plea was not knowing, intelligent or voluntary due to the lack of advice from counsel regarding the stri ke issue, we reject th e claim for the reasons stated in the discussion, ante . (See Hill v. Lockhart , supra , 474 U.S. at pp. 56-58.)