Filed 3/26/14 P. v. Hernandez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063803
Plaintiff and Respondent,
v. (Super. Ct. No. JCF29322)
GUILLERMO HERNANDEZ
CERVANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, William D.
Lehman, Judge. Affirmed.
Law Office of Patrick M. Ford, Patrick M. Ford, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala G. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and
Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Guillermo Hernandez Cervantes appeals from a judgment of the trial
court entered after he pled no contest to one count of selling, transporting, or offering to
sell a controlled substance, in violation of Health and Safety Code section 11352,
subdivision (a).1
Cervantes was arrested after police officers executed a search warrant that
authorized searches of his person, his car, and his home, based on information provided
to them by a confidential informant. On appeal, Cervantes contends that his trial counsel
rendered ineffective assistance by failing to investigate the reliability of the confidential
informant prior to recommending that Cervantes accept a plea bargain pursuant to which
Cervantes would enter a no contest plea and agree to a sentence of five years.
We conclude that Cervantes's ineffective assistance of counsel claim is without
merit. We therefore affirm the judgment.
1 Further statutory references are to the Health and Safety Code unless otherwise
specified.
2
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background 2
On August 11, 2012, El Centro Police Officers C. Gustafson and James Thompson
executed a search warrant that authorized the search of Cervantes, his vehicle, and his
residence. The search warrant had been issued in conformance with People v. Hobbs
(1994) 7 Cal.4th 948, 972, in that the probable cause was established by statements made
by a confidential informant. Cervantes was present while the officers performed the
searches.
In Cervantes's bedroom, officers found a cardboard box, in which they discovered
two digital scales, a used syringe, several razor blades, rubber bands, a glass pipe, and a
dark brown tar-like substance.
Sergeant Sawyer3 searched Cervantes's cell phone and found several text
messages that indicated that Cervantes had sold controlled substances.
Officers placed Cervantes under arrest. After officers informed Cervantes that he
would be subjected to a strip search at the jail, Cervantes retrieved a bag that contained
four small bindles of heroin from his buttocks.
Cervantes told Officer Thompson that he would buy 12 grams of heroin at a time
and would keep two grams for himself. Cervantes would cut the remaining 10 grams
2 Because Cervantes pled guilty and there was no trial, these facts are taken from
the probation report.
3 Sergeant Sawyer's first name is not provided in the probation report.
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with Pepsi and sugar, and then sell the cut heroin. Cervantes said that he could make
between $100 and $600 per day selling heroin.
Cervantes possessed 91.9 grams of cut heroin at the time of his arrest.
B. Procedural background
The Imperial County District Attorney filed an information charging Cervantes
with possession of a controlled substance for sale (§ 11351; count 1), and sale,
transportation, or offer to sell a controlled substance (§ 11352, subd. (a); count 2). The
information alleged that Cervantes had suffered a prior conviction for sale, transportation,
or offer to sell a controlled substance, with respect to both counts (§ 11370.2, subd. (a)).
Approximately three months after the charging document was filed, Cervantes
pled no contest to count 2. Pursuant to a plea agreement, Cervantes was to receive a
sentence of five years, to be served in county jail, and the remaining charge and prior
conviction allegations would be dismissed.
At a sentencing hearing in February 2013, Cervantes asked to be permitted to
withdraw his no contest plea and requested that the court conduct a Marsden4 hearing, in
order to replace his appointed counsel. At that hearing, Cervantes's attorney at the time,
Monica Lepe-Negrete, informed the court that Cervantes had been in contact with
another attorney, John Breeze, and that Cervantes wanted to retain Attorney Breeze. The
trial court agreed to continue the proceedings to allow Cervantes to retain Attorney
Breeze.
4 People v. Marsden (1970) 2 Cal.3d 118.
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At a second Marsden hearing in March 2013, Cervantes informed the court that he
had been unable to retain Breeze, but still wished to relieve Attorney Lepe-Negrete as his
attorney. Cervantes said that he had not been aware of how much heroin he had been
charged with possessing. Cervantes indicated that he wanted to withdraw his plea, and
stated that "when [he] was talking to her [i.e. Attorney Lepe-Negrete]," he had been
"going through withdrawals" and "wasn't thinking right." Attorney Lepe-Negrete told the
court that she had gone over the entire police report with Cervantes, including the
information about the quantity of drugs found, and that Cervantes had recently stopped
speaking with her. The trial court relieved Lepe-Negrete as Cervantes's attorney.
At a subsequent hearing, Cervantes was represented by Attorney Breeze. The
court had set the matter for sentencing, but at the hearing, Attorney Breeze moved to set
aside Cervantes's plea, based on ineffective assistance of counsel. The trial court denied
Cervantes's motion to set aside the plea, and pursuant to the plea agreement, sentenced
Cervantes to the upper term of five years in local custody.
Cervantes filed a timely notice of appeal. The trial court granted Cervantes's
request for a certificate of probable cause.
III.
DISCUSSION
Cervantes contends that his trial counsel rendered ineffective assistance by failing
to investigate the reliability of the confidential informant who provided the statements on
which the search warrant was based. "An appellant claiming ineffective assistance of
counsel has the burden to show: (1) counsel's performance was deficient, falling below an
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objective standard of reasonableness under prevailing professional norms; and (2) the
deficient performance resulted in prejudice." (People v. Montoya (2007) 149
Cal.App.4th 1139, 1146–1147 (Montoya); Strickland v. Washington (1984) 466 U.S. 668,
687 (Strickland) [setting out two-pronged test for assessing ineffective assistance of
counsel claims as requiring showing of deficient performance and resultant prejudice].)
"In determining whether counsel's performance was deficient, we exercise
deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's
deficiency involved a crucial issue and cannot be explained on the basis of any
knowledgeable choice of tactics. [Citation.] [¶] Our Supreme Court recently reiterated
the obligations of appellate courts in reviewing claims of ineffective assistance of
counsel: ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a "strong
presumption that counsel's conduct falls within the wide range of professional
assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions'
[citation], and we have explained that 'courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are
generally not deemed reversible, and counsel's decisionmaking must be evaluated in the
context of the available facts.' [Citation.]" ' [Citation.]" (Montoya, supra, 149
Cal.App.4th at p. 1147.) " 'Competent counsel is not required to make all conceivable
motions or to leave an exhaustive paper trail for the sake of the record. Rather,
competent counsel should realistically examine the case, the evidence, and the issues, and
pursue those avenues of defense that, to their best and reasonable professional judgment,
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seem appropriate under the circumstances. [Citation.]' [Citation.]" (Montoya, supra,
149 Cal.App.4th at pp. 1147–1148.)
"To establish prejudice, '[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.' [Citations.] 'A reasonable probability is a probability
sufficient to undermine confidence in the outcome.' [Citation.] In demonstrating
prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable
reality," not simply speculation as to the effect of the errors or omissions of counsel.'
[Citation.]" (Montoya, supra, 149 Cal.App.4th at p. 1147.)
In the context of a guilty plea, the " ' "prejudice," requirement . . . focuses on
whether counsel's constitutionally ineffective performance affected the outcome of the
plea process. In other words, in order to satisfy the "prejudice" requirement, the
defendant must show that there is a reasonable probability that, but for counsel's errors,
he [or she] would not have pleaded guilty and would have insisted on going to trial.' "
(People v. Breslin (2012) 205 Cal.App.4th 1409, 1419 (Breslin), quoting Hill v. Lockhart
(1985) 474 U.S. 52, 59.)
A court does not have to address both components of the ineffective assistance
inquiry if the defendant makes an insufficient showing on one. (Strickland, supra, 466
U.S. at p. 697.) Specifically, "a court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the
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ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed." (Ibid.)
Cervantes admits that he cannot establish that he was prejudiced by his counsel's
purportedly deficient performance, arguing that "it is difficult to establish prejudice for
the ineffective assistance of counsel claim . . . because no one can presently determine
whether a defense motion to quash or traverse would have been successful." We agree
with this assessment. The only evidence that Cervantes presents in support of his
position that he was prejudiced is his own self-serving declaration. In that declaration,
Cervantes claims, "If I had known that there was a basis for challenging the search of my
residence in this case, I would have told my counsel to go forward with that motion . . . ."
Cervantes does not contend that he would not have entered a no contest plea and agreed
to a five-year sentence if he had known that there was a basis for challenging the search.
A defendant's self-serving declaration is insufficient on its own to establish a basis
for withdrawing a guilty plea on the ground of ineffective assistance of counsel (cf. In re
Alvernaz (1992) 2 Cal.4th 924, 938 [a defendant's self-serving statement that he or she
would have accepted a proffered plea bargain if provided competent advise must be
corroborated independently by objective evidence]). Further, Cervantes has made no
showing that the identity of the confidential information would have been helpful to him,
even if it had been revealed. Cervantes claims in his declaration only that he would have
sought to go forward with the motion to challenge the search warrant. Since there is no
showing that a challenge to the search warrant might have been successful, or that
Cervantes would not have agreed to enter a no contest plea if he had known there was a
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possibility of challenging the search warrant, Cervantes cannot establish that his
attorney's conduct affected the outcome of the plea process. (See Breslin, supra, 205
Cal.App.4th at p. 1419.)
Because Cervantes cannot establish that he suffered prejudice from his counsel's
alleged failure to investigate the confidential informant, we need not address the other
element of his ineffective assistance of counsel claim. (See Strickland, supra, 466 U.S. at
p. 697.)5
5 Cervantes also would have had difficulty establishing the other prong of a claim of
ineffective assistance of counsel, i.e., that his first attorney's performance was deficient.
As the district attorney stated on the record in the trial court, defense counsel is not
required to filed a suppression motion each time the Hobbs procedure is used, and the
policy of the district attorney's office is to increase the terms of a plea offer if a motion to
traverse or quash a warrant is denied. The record does not demonstrate that Cervantes's
trial counsel did not consider this and/or weigh other considerations in deciding whether
to move to traverse the search warrant to seek the identity of the confidential informant.
Given the " 'strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance' [citation]" (People v. Vines (2011) 51 Cal.4th 830,
876), it is unlikely that Cervantes would have been able to meet his burden to
demonstrate that his counsel's performance was deficient.
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IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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