Filed 1/29/15 P. v. Hafezi CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v.
FARHAD FRED HAFEZI, Defendant and Appellant.

________________ __________________ In re
FARHAD FRED HAFEZI on Habeas Corpus. B249035 (Super. Ct. No. KA090841)

B254083 (Super. Ct. No. KA090841)

APPEAL from a judgment of the Superi or Court of Los Angeles County. Tia Fisher, Judge. Judgment affirmed. ORIGINAL PROCEEDING on petition for wr it of habeas corpus. Tia Fisher, Judge. Writ denied.

______ Jeffrey Brodey for Defendant , Appellant and Petitioner. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and J. Michae l Lehmann, Deputy A ttorneys General, for Plaintiff and Respondent.

______2 An amended information, as relevant, charged Farhad Fred Hafezi with five counts of oral copulation with a minor (Pen. Code, § 288a, subd. (b)(1) (counts 1, 3, 7, 8, 9)) 1 , one count of unlawful sexual intercour se with a minor (§ 261.5, subd. (c) (count 2)) and one count of meeting a minor for lewd purposes (§ 288.4, subd. (b) (count 6)). All counts related to Hafezi’s alleged conduct with a 17-year-old girl between August 1, 2009 and May 7, 2010. Hafezi, represented by private counsel, pleaded no contest to those charges. He th en retained new private counsel and, before sentencing, filed a motion to withdraw his plea. After multiple hearing days with extensive testimony from various witnesses, which occurred over the course of about a year, the trial court denied the motion. Th e court suspended imposition of sentence and placed Hafezi on formal probatio n for three years, with 180 days in county jail as a condition of probation less cr edit for time served and good conduct. Hafezi obtained a certificate of probable cause and filed a noti ce of appeal contesting the denial of the motion to withdraw his plea. We find no erro r in the denial of th e motion to withdraw Hafezi’s plea and thus affirm the judgment. Hafezi concurrently filed a petition for writ of habeas corpus, which we deny.
DISCUSSION Although in the trial court Hafezi raised numerous grounds for withdrawal of his plea, his appeal relies on a claim of ineffectiv e assistance of counsel based on his trial counsel’s (1) erroneous advice that the tria l court’s indicated sentence would expire by the following Monday morning if he did not enter the plea on Friday afternoon after a long day in court; and (2) failure to advise Hafezi that if he went to trial a reasonable probability existed that he wo uld obtain a more favorable result. These grounds do not
establish ineffective assistance of counsel. As a result, Ha fezi has not demonstrated a basis on appeal for withdrawal of his plea. “‘“[T]he right to counsel is the right to the effective assistance of counsel.”’ [Citation.] ‘The benchmark for judging any cl aim of ineffectiveness must be whether

1 Statutory references are to the Penal Code.3 counsel’s conduct so undermin ed the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result .’ [Citation.] ‘A convicted
defendant’s claim that counsel’ s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires sh owing that counsel made errors so serious that counsel was not functioning as the “coun sel” guaranteed the defendant by the Sixth Amendment. Second, the defe ndant must show th at the deficient performance prejudiced the defense. This requires showing that coun sel made errors so serious as to deprive the defendant of a fair trial, a trial whose resu lt is reliable. Unless a defendant makes both showings, it cannot be said th at the conviction . . . result ed from a breakdown in the adversary process that renders the re sult unreliable.’ [Citation.]” ( In re Valdez (2010) 49 Cal.4th 715, 729.) “To make the required showings, [defe ndant] must show that his attorney’s ‘representation fell below an objective standa rd of reasonableness’ ‘under prevailing professional norms’ [citations] and ‘that ther e is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability su fficient to undermin e confidence in the outcome’ [citation]. ‘This second part of th e . . . test “is not solely one of outcome determination. Instead, the question is ‘whe ther counsel’s deficien t performance renders the result of the trial unreliable or the pro ceeding fundamentally unfair.’ [Citation.]” [Citation.]’ [Citation.]” ( In re Valdez
, supra , 49 Cal.4th at p. 729.) “‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every
effort be made to eliminate the distorti ng effects of hindsight, to reconstruct the circumstances of counsel’s challenged cond uct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the4 evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professi onal assistance; that is, the defendant must overcome the presumption that, under the ci rcumstances, the challenged action “might be considered sound trial strategy. ” [Citation.]’ [Citation.]” ( In re Valdez
, supra , 49 Cal.4th at pp. 729-730.) In reviewing the denial of a motion to withdraw a plea, we adopt the trial court’s factual findings if substantial eviden ce supports them ( People v.
Fairbank (1997) 16 Cal.4th 1223, 1254) and recogni ze that, in determining the facts, a trial court is not bound by defendan t’s uncontradicted statements ( People v. Hunt (1985) 174 Cal.App.3d 95, 103).
Hafezi first claims ineffective assistan ce of counsel based on his trial counsel’s purported erroneous advice that the trial cour t’s indicated sentence would not be available on the following Monday morni ng, which forced Hafezi to enter the plea on Friday afternoon after a long day in court. Accord ing to Hafezi, despite it being late Friday afternoon, trial counsel advise d him to plead to all counts and told him that the trial court’s indicated sentence of probation with a maximum one year in county jail, as opposed to state prison as s ought by the prosecutor, likely would not be available if he did not enter the plea that day. Hafezi’s cl aim is contrary to th e evidence adduced in
connection with the motion to wi thdraw his plea. Trial counsel testified that he did not advise Hafezi to plead no contest to the charge s. Rather, trial counsel advised Hafezi that whether to enter a plea or proceed to trial was Hafezi’s decision, but if trial counsel were in his place he would go to trial. To the extent trial counsel stated that the court’s indicated sentence might not be available the following Monday an d pointed out that Hafezi might obtain advantages in sentencing by pleading that day, these were reasonable
statements based on counsel’s testimony that in his experience trial courts may give leniency in sentencing to a defendant who accepts responsib ility soon after an indicated sentence is presented. Indeed, in denying th e motion to withdraw the plea, the trial court recognized Hafezi’s concern about being in carcerated and its statement made during the plea discussions that it would consider impos ing “no time” if Hafezi entered a plea, despite the prosecutor’s evaluation of th e matter as one warranting a state prison5 sentence. Moreover, given that the parties, al ong with the court, discussed a plea and the attendant consequences for a significant tim e on Friday, and Hafezi had consulted with both a licensing attorney regarding his medical license and an immigration attorney about his status as a Canadian citizen, entry of a pl ea that afternoon was in line with the day’s proceedings and taken only after trial counsel repeatedly had conferred with Hafezi. Hafezi alludes to the potential consequenc es of his plea of losing his license to practice medicine and being deported, as well as to his claim that he was suffering from hypoglycemia at the time he entered the pl ea, to bolster his claim that trial counsel
should have advised him to consider the plea over the weekend. As noted, however, Hafezi consulted with both a licensing and an immigration attorney before pleading to the charged counts and extens ively discussed with the trial court and his trial counsel the possibility of entering a plea. Moreov er, the trial court found, “Dr. Hafezi is an orthopedic surgeon who still practices me dicine. Dr. Hafezi is still engaged in surgery. According to the testimony, still maintains, I believe, two offices, one in Beverly Hills. . . . [H]ere is testimony from a doctor who is basically wanting to withdraw a plea because of all of these significant health problems, all of the significant statements made by his significant other about how confused he can get, all of that. Yet, at the same time, I’m hearing this person, Dr. Hafezi, is performing orthopedi c surgery, which is pretty serious stuff, a surgeon. Stop it, Dr. Ha fezi, because this is exactly what happened during the plea. Dr. Hafezi knew exactly what was going on.” The court further concluded, “What I find very, very intere sting, and I’ve watched this and I’ve seen
Dr. Hafezi—because it’s now 4:50—involved, engaged, stopping, asking questions, concerned. No different pict ure today than what I saw that day [he entered his plea]. Same time of day. It’s been a long day. These are all hard da ys. Dr. Hafezi is a surgeon. He works in the afternoons over in Beverly Hills sometimes . . . . What the transcript
reflects isn’t that the court was under some impression that I’m dealing with a very fragile, weak, confused person. It’s that I wa nt to make sure, certain, that Dr. Hafezi was well aware of the consequences, all of them. And I’m satisfied that he was.” Although
Hafezi contends that the “better advice” woul d have been for trial counsel to tell him to6 take the weekend to consider whether to en ter a plea, claiming better advice could have been given does not establish ineffective assistance of counsel, which requires a performance below an objective st andard of reasonableness. As to his argument that trial counsel was ineffective for failing to advise him that if he went to trial a reasonable probability ex isted that he would obtain a more favorable result than if he entered a plea, Hafezi ma kes three claims: (1) trial counsel did not advise him that even if a jury convicted him on all charges he would not go to state prison
because the trial court had indicated the cas e did not warrant a st ate prison sentence; (2) trial counsel did not advise him that he sh ould not enter a plea because he had a viable defense to the charge of meeting a minor for lewd purposes b ecause evidence was lacking that his “actions were motivated by an ‘unnatural or abnormal sexual interest in children’”; and (3) trial counsel did not advise him that if he were convicted of the crimes of oral copulation and sexual intercourse with a minor he would not necessarily have to register for life as a sex offender. No ne of these claims has merit. The trial court’s expression that the cas e did not warrant a state prison sentence, contrary to the prosecutor’s opinion, was ma de in relation to the punishment that it considered imposing pursuant to a plea and based on its unders tanding of the case at that
time. That view did not fore close the possibility that trial might reveal the crimes were
more serious than first understood and ther efore warranted a state prison sentence.
As to the claim that trial counsel failed to advise Hafezi not to enter a plea because of the purported defense to the charge of me eting a minor for lewd purposes, Hafezi did not raise this argument as a basis for ineff ective assistance of counsel in his motion to withdraw the plea. In any case, counsel, as noted, told Hafezi the decision whether to enter a plea was up to him and if it were counsel making the decision for himself he would opt to go to trial. Ind eed, Hafezi states in his declara tion that trial counsel told him “this was a very good case for th e defense.” In addition, Hafezi chose not to testify at the hearings on the motion to withdraw his plea and did not state in hi s declaration that he would not have entered the plea had he known he had a viable defense to the charge of meeting a minor for lewd purposes.7 Hafezi claims that trial counsel failed to tell him that convictions of the crimes of oral copulation and sexual intercourse w ith a minor, unlike the offense of meeting a minor for lewd purposes, gave the cour t discretion whether to impose lifetime sex offender registration. But whether the c ourt would have exerci sed its discretion not to impose lifetime sex offender registration if Hafezi had been convicted of the oral copulation and sexual intercourse with a minor offenses, and acquitted of the charge of meeting a minor for lewd purposes, is sheer sp eculation. We do not know what the facts at trial would have been and whether they would have supporte d the discretionary imposition of lifetim e sex offender registration. To the extent Hafezi’s argument is that trial counsel should ha ve advised him that he had nothing to lose by goin g to trial, the United States Supreme Court has rejected such an argument as a ba sis for finding ineffective assistance of counsel. ( Knowles v. Morzayance (2009) 556 U.S. 111, 122 [“no Supreme Court precedent establishing a ‘nothing to lose’ standard for ineffective-assistan ce-of-counsel claims”].)
DISPOSITION On the appeal, the judgment is affirmed. On the original proceeding, the petition for a writ of habeas corpus is denied.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J. We concur:

JOHNSON, J. BENDIX, J. *

* Judge of the Los Angeles Superior Court, Assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.