Filed 1/27/14 P. v. R odriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
GILDARDO RODRIGUEZ , Defendant and Appellant. H039238 (Santa Clara County Super. Ct. No. C1095258 )

D efendant Gildardo Rodriguez pleaded no contest to attempted murder in exchange for a sentence of 12 years

. ( § § 664 , subd. (a), 187. ) 1 He also admitted t wo enhancements: personal infliction of great bodily injury, and that he committed the offense for the benefit of a criminal street gang . (§§ 12022.7, subd. (a), 186.22, subd. (b)(l)(C).) D efendant moved to withdraw his plea before he was sentenced . The trial
court denied his motion and sentenced him to the negotiate d term of 12 years. Defendant appeals from the denial of his motion to withdraw his plea. 2 He also claims his sentence was disproportionate to his offense, and he raises several claims of ineffective assistance of counsel. We find defendant’s claims wit hout merit, and we will affirm the judgment.

1 All undesignated statutory references are to the Penal Code.
2 The trial court granted defendant’s request for a certificate of probable cause.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND A. Facts of the Offense On the evening of May 7 , 2010, the victim, Steven Johnson, w as in San José visiting with his girlfriend

. After they park ed at her apartment complex , a group of about
five persons , including defendant , spotted the couple walking away from their van . One
of the five , a S ureño gang member known as “Lil Shadow , ” asked Johnson, “Do you bang?” Johnson , unaware he was in a Sure ñ o

- dominated neighborhood , responded,
“Norte

. ” Lil Shadow responded , “Fuck Norte.” Johnson ran away, and the group of five , including defendant, ran after him. Johnson tripped, struck a car , and fell to the ground , whereupon the group beat him and
kicked him. Defendant , by hi s own admission, kicked Johnson in the head at least twice. Defendant heard the other attackers say “Fuck Norte” as they were hitting Johnson. After about 30 seconds, defendant heard a car honk, and he left the scene , while others
remained behind

. As he was running away, d efendant saw one of the other attackers thrusting towards the victim. Defendant later testified he had seen Lil Shadow with a
knife. Johnson suffered several lacerations to his head, a laceration to each forearm, a
stab wound to his thigh, and nine stab wounds to his back. One of his kidne ys had been cut, and he suffered blee d ing around his lungs. Based on a witness’s tip , police went to defendant’s family home at around 2:00

a.m. the morning after the attack

. About six or seve n armed officers entered and search ed the apartment. Four or five officers found defendant asleep in his bedroom and took him outside for questioning

. Defendant was barefoot and dressed in his pajamas, but he was
not handcuffed . P olice told him he was n ot under arrest. Police kept defendant’s family members in the living room and told them not to move. Defendant was not allowed to speak with his parents.3

When he was questioned outside the apartment, d efendant admitted he was involved in the attack, and he admitted kicking the victim in the head . At that point, police formally arrested defendant and advised him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ). Defendant said he understood his rights and continued to talk to polic e. He then reaffirmed that he had attacked the victim. Police recorded defendant’s statements, but the record contains no transcript of the recordings.
Police then took defendant to the Juvenile Pre

- Pro cessing Center at the San José
Police D epartment. After booking defendant, police again advised him of his Miranda rights, and he agreed to talk to them. Defendant again admitted to the facts of his
involvement . He admitted that the other attackers were members of a Sure ñ o gang, and
he handwrote a not e of apology.
B. Pretrial Proceedings and Defendant’s Motion to Withdraw His Plea Although d efendant was a minor at the time of the offense , 3 the court found him

not fit for juvenile court under Welfare and Institutions Code section 707(c)

. The prosecutor charged defendant wi th attempted murder. (§§ 187, 664, subd. (a).) The complaint further alleged defendant personally inflicted great bodily injury and that he
committed the offense for the benefit of, at the direction of, or in association with , a criminal street gang . (§§ 187, 12022.7, subd. (a), 1203, subd. (e)(3), 186.22, subd. (b)(l)(C).) Based on the charge and the enhancement allegations in the complaint , d efendant faced a maximum sentence of 22 years. At the preliminary hearing, the p rose cutor offered a plea settlement for a term of 15 years , but defendant rejected the offer

. The court , finding the evidence sufficient to

su pport the co mplaint , held defendant to answer. The prosecutor charged defendant by
information identical to the complaint in all relevant respects

.

3 Defendant was 17 years old when the incident occurred.4

Defendant changed his plea o n September 26, 2011, the day the case was set for
trial. He pleaded no contest to attempted murder and admitted the enhancement allegations in exchange for a term of 12 years, consisting of the aggravated term of nine years for attempted murder plus three years for infliction of great bodily injury. The parties ag reed the additional 10

- year gang enhancement penalty w ould be stricken. At the plea hearing, the court fully admonished defendant about his rights and the terms of the plea agreement

. D efendant personally stated that he understood his rights
and that his plea was free and voluntary. He also waived his right to appeal. The prosecutor and counsel for defendant stipulated to a factual basis for the plea based on the police reports and the transcript of the preliminary hearing. The court found defendant
fu lly informed of his rights, and the court found he knowingly, intelligently, freely, and voluntarily waived his rights. On March 2, 2012, before sentencing , d efendant substituted new counsel and moved to withdraw his plea under section 1018

. H e argued that his prior attorney , Cary Lindstrom, provided ineffective assistance of counsel and failed to inform him of potentially meritorious defenses. D efendant , his mother, and his sister all testified at a hearing as to their interactions with Mr. Lindstrom , the circumstances of the polic e search , and defendant ’s interrogation

. Regarding the police search of the home, defendant , his mother, and his sister all

test ified that the police did not have a warrant. Defendant’s mother gave conflicting testimony a bout whether she or anyone else consent ed to the search of their home. Initially, she testified that she gave permission to the police to enter the apartment. S he
then testified that her husband had opened the door, and that police pushed him out of the way before entering. She stated that police entered the home without permission. On cross examination, she testified that they gave permission to the police, but she added that she never personally spoke to the police and that “ they just came in.” She a gain stated5

that it was her husband who opened the door, and that the police “just came in” without permission.
D efendant, his mother, and his sister all te stified that Lindstrom told them the case
would be easier and defendant w ould get out of custody sooner if he were prosecuted as
an adult rather than a juvenile. Defendant’s mother gave conflicting testimony about
whether she ever discussed the circumstances of the police search with Lindstrom

. First, she testified that she never discussed the police entry with Lindstrom, and he never asked
her about it. On cross examination, however, she testified that she told Lindstrom about how police entered the apartment. In describing defendant’s demea nor at the plea hearing, defendant’s mother
testified that he was emotionall y upset and crying before he entered his plea

. She said he appeared indecisive , desperate, and under pressure to enter the plea. She testified that a bailiff told defendant it wa s time for him to make a decision. Defendant’s sister gave similar testimony describing defendant as upset and not wanting to enter the plea

. Defendant testified that he did not feel prepared for trial

. He testified that
Lindstrom had not adequately d iscuss ed the case with him and had not given him copies of the police reports or the transcript of the preliminary hearing . He testified that at the time of his plea, he wanted to seek a continuance to give him more time to study the
evidence , but he was pressured into pleading no contest

. When cross examined about the
waivers and admissions he made in his plea colloquy, defendant denied that his answers
to the court were truthful. He also testified concerning his decision to accept the plea agreement. He conceded that he did so because he was concerned he would lose at trial,
and he believed the offer from the prosecutor was the lowest sentence he could achieve
otherwise. Lindstrom testified for the prosecution and signed a declaration in support of the prosecution’s opposition to the motion to withdraw

. He denied telling defendant or the family that the case would be easier if defendant were prosecuted as an adult. Lindstrom6

testified that he reviewed the police report s with defendant, but he could not recall giving any copies to defendant. Lindstrom admitted he had a policy of not giving police reports to clients in custody because other inmates would see them. Lindstrom testified that he explained any possible defens es to defendant on multiple occasions

. Lindstrom conceded that he did not file any motions or discovery requests

. He did not hire an investigator or do any investigation. He never attempted to interview the victim, even though the victim was in custod y and available to him

. Although the case was set to go to trial on the day defendant entered his plea, Lindstrom had filed no motions in limine, and the record shows no opposition or reply to the prosecutor’s
motions in limine. Lindstrom gave equivoca l statements about whether he interviewed the family to
determine whether the search of defendant’s home was consensual. Lindstrom’s declaration stated, “In discussions with Gi [ l ] d ardo Rodriguez’s family they never stated there was any forced entry into t he home.” At the hearing, he testified that he discussed the possibility of filing a pretrial motion with the family, b ut the family never told him the police entry was nonconsensual. On cross examination, however, Lindstrom admitted that he never did any investigation with the family concerning the police entry. Lindstrom’s declaration state d that he had listened to the police recordings of defendant’s statements . However, at the hearing, Lindstrom could not recall whether there were any such recordings until the prosecutor refreshed Lindstrom’s recollection of
his declaration , whereupon he testified that he had listene d to the recordings. Lindstrom testified that after the preliminary hearing, the prosecution provided him with an email from a physician who had examined the victim’s injuries. The physician told the prosecutor he could not testify with any certainty t hat the injuries to the victim’s head were “kick

- specific , ” and were equally likely to have been caused by the victim’s head hitting the curb. Lindstrom testified that the issue of great bodily in jury had thereby been resolve d in defendant’s favor. Furth ermore, the prosecu tor told7

Lindstrom that , in all likelihood, the prosecutor would dismiss th at allegation. Lindstrom testified that he informed defendant of this development but the parties nonetheless used the allegation as a way “to get to a certain n umber” in negotiating a disposition.
Lindstrom also admitted that the allegation of great bodily injury was a factor that resulted in defendant’s case being transferred to adult court

. Lindstrom disputed that defendant was emotionally upset prior to en tering his plea. He did not recall defendant crying at the hearing, and instead described defendant’s demeanor as “resolved.” At one point, defendant told Lindstrom, “Yeah, I’m ready to do this. Let’s do this.” Lindstrom believed that most of the anxie ty concerning the plea originated with defendant’s family, not defendant himself. Lindstrom testified that defendant had come to understand the seriousness of the charges

. Lindstrom had explained to him the weakness of their defense given the strength of the evidence and defendant’s own admissions to police.
At the conclusion of a hearing on December 19, 2012 , the trial court found no ineffective assistance of counsel by Lindstrom, but the court did not address any specific allege d failures such as the failure to conduct investigation or file any motions. As to the entry of plea, the court found defendant did so voluntarily, knowingly , intelligently, and without undue pressure from the court or any party. Accordingly, the court d enied defendant’s motion to withdraw his plea, and sentenced him to a term of 12 years in
accord with the terms of the plea agreement.
II. D ISCUSSION Defendant raises three categories of claims on appeal. First, he contends the trial court erred in denying his motion to withdraw his plea because he did not knowingly and intelligently enter the plea. Second, he claims his sentence is disproportionate to his
crime in violation of the California Constitution. Finally, he raise s several claims of
ineffective assistance of counsel.8

A. Standard of Review A denial of a motion to withdraw a guilty or no contest plea rests in the sound
discretion of the trial court and is final unless the defendant can show a clear abuse of discretion. ( People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) A reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. ( Ibid. ) “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing profe ssional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” ( People v. Benavides (2005) 35 Cal.4th 69, 92

- 93, citing Strickland v. Washingto n (1984) 466 U.S. 668, 687

- 688, 693

- 694 ( Strickland ) .) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been di fferent. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” ’ ” ( Id. at p. 624.) “It is the defendant’s burden on appeal [. . .] to show that
he or she was denied effective assistance of counsel and is entitled to relief. [Citations.] ‘[T]he burden of proof that the defendant must meet in order to establish his [or her]
entitlement to relief on an ineffective

- assistance claim is preponderance of the evidence.’ [Citation.]” ( In re Hill (2011) 198 Cal.App.4th 1 008, 1016.)
B. The Denial of Defendant’s Motion to Withdraw His Plea Under state law, a defendant may move the trial court to set aside a guilty plea for “good cause” at any time before the entry of judgment. (§ 1018.) “Good cause” means mistake, ignorance , fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. ( People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) The standard for determining the validity of a guilty9

plea is set for th in Boykin v. Alabama (1969) 395 U.S. 238

. A defendant must be informed of his rights and he must be given an opportunity to make an intelligent choice to plead guilty. ( In re Ibarra (1983) 34 Cal.3d. 277 [overuled on other grounds in People
v. Howard (1992) 1 Cal.4th 1132 ].) Before a defendant may enter a plea of guilty, he must knowingly and intelligently waive certain constitutional rights: the privilege against self incrimination, the right to trial by jury, and the right to confront his accusers. ( Boykin v. Alabama , supra, at p. 243.) Furthermore, “the record must contain on its face direct evidence that the accused was aware, or made aware , of his right to confrontation, to a jury trial, and against self

- incrimination, as well as the nature of t he charge and the consequences of his plea.” ( In re Tahl (1969) 1 Cal.3d 122, 132 [disavowed on other grounds] .) Defendant argues that his plea was not knowing and intelligent because he was emotionally unstable and under duress when he entered it. Defe ndant’s mother and sister testified that he was crying and emotionally upset at the plea hearing. Lindstrom testified to the contrary, stating that defendant was “resolved” and made the decision knowing the seriousness of the charges and the risk of losin g at trial. At the hearing on the motion to withdraw, defendant testified that he understood the charges and allegations against him. He admitted again to the facts of his involvement in th e attack. B ut when the prosecutor questioned him as to whether t he evidence was thereby sufficient to support the charged offense, defendant testified that he did not believe the evidence supported a charge of attempted murder, and that Lindstrom had never explained the theory of aiding and abetting to him. However, L indstrom testified that he explain ed the theories of liability to defendant, and Lindstrom believed that defendant eventually came to understand his liability. Furthermore , defendant admitted that he accepted the plea agreement because
he was concerned ab out the consequences of a verdict against him, and he believed the
offer was the lowest sentence he could achieve. This testimony constitutes substantial
evidence for the trial court’s finding that defendant’s plea was knowing and intelligent

.10

Defendant also contends he did not want to en ter into the plea, and that he did so
because of coercion by his attorney. Lindstrom agreed that he advised defendant to accept the plea offer. However, “[t]he fact that [defendant] may have been persuaded, or
was reluc tant, to accept the plea is not sufficient to warrant the plea being withdrawn.” ( People v. Ravaux, supra, 142 Cal.App.4th at p. 919.) “Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged .” ( People v. Hunt (1985) 174 Cal.App.3d 95, 103.) Finally, defendant asserts that Lindstrom failed to inform him of the email from the expert physician stating he could not testify with certainty that the victim’s injuries were caused by defendant’s kic ks to the head. Although defendant testified that Lindstrom had given him a stack of documents about an inch thick, defendant could not recall exactly what was included in these documents. Lindstrom , however, testified that he informed defendant of the likelihood the prosecutor would dismiss the great bodily injury allegation based on th e email from the doctor . This constitutes substantial evidence to support a finding that defendant was aware of these circum stances at the time of his plea

. Accordingly, w e find no abuse of discretion by the trial court in denying defendant’s motion to withdraw his plea. C. Proportionality of the Sentence Defendant contends his sentence is disproportiona te to his offense in viol ation of the California Constitution. He argues that his participation in the attack on the victim was limited to kicking the victim twice in the head, which did not result in “serious injuries , ” whereas another person inflicted the knife wounds. The Att orney General contends defendant waived this claim on appeal under the terms of his plea agreement.
The record shows that d efendant expressly waived his appellate rights under the terms of his plea agreement after the trial court admonished him as to his right to appeal and question ed him as to his understanding of it

. Having rejected defendant’s challenge11

to the validity of his plea, we must enforce its terms. ( People v. Panizzon (1996) 13 Cal.4th 68, 84 [waiver of right to appeal on basis of disproport ionate sentence found enforceable where defendant entered it knowingly, intelligently, and voluntarily].) Furthermore, defendant’s acceptance of the plea arrangement constituted an implicit waiver of his appeal on this ground. “ ‘When a defendant maintai ns that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived a ny rights under such rules by choosing to accept the plea bargain.’ ” ( People v. Hester (2000) 22 Cal.4th 290, 295 [quoting People v. Couch (1996) 48 Cal.App.4th 1053, 1057].) Accordingly, we find
defendant has waived appellate review of his claim that he received a disproportionate

sentence

. D. Ineffective Assistance of Counsel Defendant raises numerous claims of ineffective assistance of counsel by
Lindstrom. The Attorney General characterizes Lindstrom’s conduct as tactically
motivated and contends h is representation was reasonable. We agree with defendant that Lindstrom’s representation fell below professional standards in some respects, but on the
record before us , defendant does not show a reasonable likelihood he would have
obtained a more favora ble outcome absent counsel’s deficiencies. Generally, defendant alleges Lindstrom failed to investigate the facts of the offense and prese nt a viable defense. Specifically, defendant claims Lindstrom (1) failed to challenge the allegations of great bodily injury and that th e offense was committed for
the benefit of a criminal street gang , resulting in his case being transferred to adult court, (2) failed to investigate the facts of the search and to file a motion to sup press based on
the unlawful police entry into hi s home and the circumstances of his interrogation, (3) failed to file a motio n to dismiss under section 995, (4) failed to seek discovery with respect to his alleged gang membership, (5) failed to seek discovery showing the v ictim12

was a gang member, and (6) stipulated to the testimony of a gang expert at the preliminary hearing

. Most of these claims are not supported by evidence in the record.
But s everal of defendant’s c omplaints regarding the deficiency of Lindstrom’s representation have merit

. First, Lindstrom admitted he did no investigation of the facts and circumstances of
the alleged offense , filed no motions , and made no discovery request s . He also did not interview defendant’s fa mily members regarding the police entry into the apartment and, more critically, the record indicates he never attempted to interview defendant’s mother’s husband, who initially answered the door when police knocked . Lindstrom claimed he reviewed the poli ce reports with defendant with respect to the police entry , but defendant was asleep upstairs when the police entered his home, so defendant likely w ould not have known whether their entry was consensual. Second, Lindstrom admitted he made no attempt to interview the victim or any other witness, even though Lindstrom conceded that the victim was in custody and available to him. Lindstrom claimed the victim’s testimony at the preliminary examination was helpful, and therefore there was no need to intervie w him. But the preliminary hearing occurred long after defendant was found not fit for juvenile court,
and Lindstrom did no investigation and filed no motions attempting to kee p defendant i n juvenile court. Conducting a basic investigation, such as attem pting to interview the
victim , might have yielded evidence that defendant was not responsible for the serious injuries suffered by the victim

–– evidence that counsel discovered only after defendant was removed from juvenile proceedings. Lindstrom admitted that the allegation of great bodily injury was a factor in the hearing to determine whether defendant’s case should be
transferred to adult court , yet he made no attempt to investigate the facts of those injuries or his client’s role in causing them.
Lind strom’s failure to investigate any of the facts and circumstances of the offense
constitute d deficient performance. “Criminal defense counsel has the duty to investigate13

carefully all defenses of fact and of law that may be available to the defendant.” ( In re
Hill (2011) 198 Cal.App.4th 1008, 1016.) “[A] defense attorney who fails to investigate potentially exculpatory evidence [...] renders deficient representation.” ( In re Edward S. (2009) 173 Cal.App.4th 387, 407.) “In any ineffectiveness case, a part icular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” ( Strickland , supra, 466
U.S. at p. 691.) Here, there was no reasonable or tactical ex planation for counsel’s failure to
conduct a basic investigat ion

. A lthough Lindstrom testified that he saw no basis for filing motions or a written opposition to the fitness determination, he could not have
made a reasonable decision about whether to do s o without first investigating the relevant
facts. A defendant “can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expec t that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. ” ( People v. Ledesma (1987) 43 Cal.3d 171, 215 .) (I talics added.) Based on the facts i n the record, a reasonably competent attorney would have
conducted some investigation to determine whether grounds existed for suppression of defendant’s statements or other evidence. This is particularly important when a defendant faces charges as seriou s as the attempted murder charges defendant faced here. ( In re Hill , supra , 198 Cal.App.4th at p. 1017) [ “[W]e must consider the seriousness of the charges against the defendant in assessing counsel’ s performance.” ].) For example, defendant faced a three

- year enhancement for personally inflicting great bodily injury on the victim, but Lindstrom conducted no independent investigation
to determine the extent to which defendant in fact was responsible for inflicting injuri es to the victim’s head

. The record, including an email produced by the prosecutor from an expert physician expressing doubt about whether the victim’s injuries to the head were14

caused by defendant, suggests defendant may not have personally inflict ed gre at bodily injury on the victim. Counsel offered no explanation or justification for his failure to investigate these facts independently or at an earlier stage of the proceedings

. Second, Lindstrom made no motion to suppress defendant’s statements to the police , and the record does not suggest any tactical justification for the failure to do so. As Lindstrom acknowledged, defenda nt’s own st atements constituted the strongest evidence against him. The record holds no statements from any eye witnesses to hi s involvement in the attack. At the preliminary hearing, the victim testified that he could not identify any of his attackers. The victim’s girlfriend testified that she could identify Lil Shadow, but she could not identify any of the other attackers. N or does the record contain any forensic evidence connecting defendant to the offense. Defendant’s statements are the only evidence of his involvement in the attack found in the record

. The record shows a motion to suppress some or all of defendant’s st atements to the police would not have been frivolous. First, had Lindstrom been able to show the police entry into the apartment was nonconsensual, or that the police detained defendant without probable cause or reasonable suspicion , at least some portion of defendant’s

statements may have been suppressed under Kaupp v. Texas (2003) 538 U.S. 626 , 632 (per curiam) (illegal detention under Fourth Amendment requires exclusion of subsequent statement given after Miranda warnings unless the confession was an act of free will sufficient to purge the taint of the unlawful invasion). There is no dispute that police entered defendant’s home without a warrant. The evidence holds conflicting evidence as to whether the police had consent to enter, but even if they did, it is not clear they had probable cause or reasonable suspicion to detain defendant. At the preliminary hearing, the testifying officer stated only that police had “developed information ” about defendant prior t o searching his apartment

. A police report states only that a neighbor saw
defendant stan ding in the park when Lil Shadow came to her door seeking shelter. We cannot determine from this record whether police had sufficient probable cause or15

reasonable su spicion to detain defendant for questioning, but a competent and diligent defense attorney would have sought to investigate these facts.
As to whether d efendant was detained or in custody at the time of his questioning,
he was awa ken ed by four or five pol ice officers in his bedroom at around 2: 00 a.m., and he was taken outside the apartment in his bare feet and pajamas while his fa mily
members were detained inside. A reasonable person in the se circumstances would not have felt free “ to disregard the polic e and go about his business. ” ( California v. Hodari
D. (1991) 499 U.S. 621, 628.) We think these circumstances, especially because defendant was a minor, suggest defendant was detained for purposes of the Fourth
Amendment , and that he was in custody for purposes of the Fifth Amendment

. ( United
States v. Mendenhall (1980) 446 U.S. 544, 554 [a person has been “seized” within the meaning of the Fourth Amendment if a reasonable person would have believed that he was not free to leave]; People v. Arnold (1967) 66 Cal.2d 438, 448 [“[C]ustody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.”] [disapproved on other grounds
in Walker v. Superior Court (1988) 47 Cal.3d 112, 123] ; People v. Lewis (2001) 26 Cal.4th 334, 383 [ “To determine whether a minor’ s confession is voluntary, a court must look at the totality of cir cumstances, including the minor’ s age, intelligence, education, experience, and c apacity to understand the meaning and consequences of the given

statement. ”].) Furthermore, according to police testimony, defendant admitted his
involvement in the attack before he was admonished under Miranda . A motion to exclude the pre

- Mirand ized por tion of defendant’s statements would not have been
frivolous , and a motion to exclude defendant’s statements made after he was given his
Miranda warnings could also have been made

. 4

4 The United States Supreme Court in Missouri v. Seibert (2004) 542 U.S. 600 ( Seibert ), for example, suppressed a defendant’s postwarning statement when police first ( Cont .)16

Even if a motion to suppress should have been made, defendant has not s hown a reasonable probability that he would have obtained a more favorable outco me as a result

. The record does not sufficiently set forth the facts and circumstances of the interrogations
and detention of defendant. 5 For example, it is not clear what po lice said to defendant prior to taking him outside the apartment, and what caused defendant to make inculpatory

statements before the police gave him a Miranda warning

. (See Rhode Island v. Innis (1980) 446 U.S. 291, 301 [ “interrogation” under Miranda refers not only to express questioning, but also to any words or actions that the police should know are reasonably likely to elicit an incriminating response ] .) It is not clear what defendant told police immediately after his formal arrest and initial M ira n da warning. Nor can we determine the extent to which defendant’s postwarning statements were mere repetitions of his initial, unwarned statement, or to what extent he may have provided additional detail. Finally, defendant points to nothing to show t hat his post

- Mirandized statements should be suppressed under Seibert

. Accordingly, the record here does not show that a motion to suppress would have yielded a reasonable probability of a more favorable outcome absent counsel’s deficient conduct. Becaus e , under Strickland , the burden is on defendant to demonstrate prejudice, we find that defendant has not shown in effective assistance of counsel arising out of the failure to file a motion to suppress. 6 ( In re Hill , supra , 198 Cal.App.4th 1008.) Defendant also complains of Lindstrom’s failure to seek dismissal under section
995. Based on Lindstrom’s testimony, it is likely he could have moved for dismissal of
deliberately elicited a confessi on before providing the defendant with a Miranda warning, then warned the defendant and conducted the interrogation anew.

5 Critical to this analysis would be the recordings of defendant’s statements, which neither party has made part of the record.

6 Based on the incomplete nature of the record concerning these circumstances, a writ of habeas corpus would be a more appropriate forum for adjudication of these claims.17

the great bodily injury allegation, but it is also clear he made a tactical decision not to do so in the interest of obtaining a more favorable settlement. 7 “Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” ( People v. Fosselman (1983) 33 Cal.3d 572, 581.) We do not second

- guess the wisdom of counsel’s tactical choice in this regard. Moreover, w hile it is hypothetically possible defendant would have enjoyed a stronger bargaining position had
counsel obtained dismissal of the great bodily injury allegation at an earlier stage in the proceedings, the facts in the record do not demonstrate that such an outcome was reasonably probable

. Defendant further complains of Lindstrom’s conduct with r espect to evidence of defendant’s gang membership. Defendant contends he is not a gang member, and he complains of Lindstrom’s stipulation to the gang expert testimony at the preliminary hearing in which the expert opined defendant was a gang member. How ever, whether defendant was a gang membe r was not a matter of great import with respect to the charges against him. D efendant need not be a gang member to be liable for the
enhancement under section 186.22, subdivision (b)(l)(C) (applying to “any person w ho is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang member [. . . .]”

. ) Defendant does not dispute that he participated in the attack “for the benefit of” or “in association with” a group of Sure ñ o gang members. Nor does he dispute that attacking a Norte ñ o gang member in territory dominated by a Sure ñ o gang amounted to “promot[ing], further[ing], or assist[ing]” th e

7 Regarding Lindstrom’s testimony to the effect that the enhancement for great bodily injury was nothing more than a bargaining chip in settlement negotiations, we find counsel’s statements troubling. While we are aware of the realities of plea bargaining, no attorney may advise his client to admit an allegation having no basis in fact.18

latter gang’s criminal conduct. In light of these fa cts, it is not reasonably probable that the issue of defendant’s membership in the gang would have affected the outcome of the proceedings. Finally, regarding the issue of prejudice generally, much of the evidence against defendant pertaining to the charge of attempted murder and the alleged gang enhancement was not in dispute

. Absent a successful motion to suppress his statements, it is not reasonably probable that def endant would have enjoyed a more favorable

outc ome had counsel employed the vari ous tactics defendant now contends he should
have undertaken

. For example, d efendant has not shown that competent investigation or other more diligent efforts by c ounsel could have overcome the evidentiary hurdles he
faced. Defendant admitted to the police that he kicked the victim at least twice in the head. While defendant denies that he was a gang member, he admitted that he attacked the victim in concert with Sureño gang members after the victim revealed he was a
member of a rival Norte ñ o gang. It is not reasonably likely that a jury would have ignored or overlooked such evidence in assessing the charges against defendant. Given
the possibility of a 10

- year gang enhancem ent penalty, and defe ndant’s undisputed cooperation with gang members in mounting the attack , it is not reasonably probable defense counsel could have obtained a more favorable plea bargain absent his deficient conduct. While a successful motion to suppre ss defendant’s statements might have
shifted the balance of the evidence in defendant’s favor, for the reasons above, we find defendant has not demonstrated a reasonable probability that such a motion would have
been successful

. In sum, g iven t he state of the evidence in the record, defendant has not shown a reasonable probability that defense counsel, absent deficient conduct, could have
obtained a more favorable outcome. Accordingly, defendant has failed to establish prejudice under the Strickland standard. We therefore find defendant’s claims of
ineffective assistance of counsel without merit.19 III. D ISPOSITION The judgment is affirmed.

_______________________________ Márquez, J.

WE CONCUR:

_____________________________________ Rushing, P. J.

______________________________________ Premo, J.