Filed 9/26/14 P. v. De La Rosa
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058707
v. (Super.Ct.No. RIF1104476)
ANTHONY KENNETH DELAROSA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
Alison Minet Adams for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Warren
Williams and Martin Doyle, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Anthony Kenneth de la Rosa appeals from a judgment of
conviction of three counts of receiving stolen property. (Pen. Code, § 496, subd. (a).)1
After the People had presented their case at trial, defendant elected to submit an “open
plea” to the court, pleading guilty to all three substantive counts and also admitting that
he had suffered a prior conviction for burglary, a “strike.” (§§ 459, 667, subds. (b)-(i).)
He also admitted that by committing the current offenses, he had violated probation in
two earlier cases.
The plea was entered and accepted on February 8, 2013. On the date set for
sentencing, February 26, defendant’s attorney informed the court that defendant wished
to withdraw his plea. Defendant acquired new counsel who filed a full motion to
withdraw the plea on April 19. The trial court denied the motion and imposed a sentence
of nine years four months.2 Having duly obtained a certificate of probable cause,
defendant now files this appeal challenging the denial of his motion to withdraw his plea.
We affirm.
1 All subsequent statutory references are to the Penal Code.
2 The court imposed the upper term of three years for one violation of section
496, subdivision (a), doubled due to defendant’s strike. The sentence also included
consecutive one-third the midterms, doubled, on the other two counts, and eight months
on a violation of probation case. Absent the last, the maximum for the current charges
was eight years eight months.
2
STATEMENT OF FACTS
A.
The case.
Three separate homes were burglarized between June 14 and July 6, 2011. In the
first burglary, among the items taken were a Tag Heuer watch and a Rolex watch. On
July 21, the owner of a jewelry store in Los Angeles purchased a Rolex and a Tag Heuer
watch from defendant, recording the latter’s identification information in doing so. An
expired driver’s license and credit card taken from the second victim were later recovered
from defendant’s apartment. Other property belonging to the victims of the first burglary
was also discovered in the apartment. Finally, the victim of the third burglary was able to
supply a description and partial license plate for a vehicle that she observed first parked
in front of her home as she arrived back from an absence, and then observed to have
driven away while she discovered the burglary. This information led to defendant.3
B.
The plea.
In connection with the plea, defendant fully executed a “felony plea form,” which
informed him of the maximum sentence (see fn. 2). It was also blank as to any promised
sentence. Defendant confirmed to the trial court that he had ample opportunity to discuss
the matter with counsel and also that he understood the maximum possible sentence. The
3 The detective investigating the case was told by a fellow officer that he had
recently had contact with a person driving a similar vehicle with a similar plate.
3
court did indicate to defendant that it intended to refer the matter to probation for a
report, which “would deal with the issues of your suitability for probation.”
As mentioned above, when defendant returned to court for sentencing, he was
apparently upset with some elements of the probation report, which included defendant’s
self-exculpatory version of the offenses.4 Counsel told the court that he had advised
defendant that it could work in his favor if he were to be seen accepting responsibility,
and that defendant “feels as though he accepted far greater responsibility than the
probation officer credited him with.”
In the motion as eventually filed, defendant asserted that trial counsel had advised
him to change his plea and had told him that “the judge would most likely sentence me to
four to six years.” He denied being advised that there was a “serious possibility that I
could receive nine years and four months for pleading guilty.” He also asserted that “[n]o
one examined [sic] to me what it meant to plea [sic] open to the court. I simple [sic]
thought that by pleading guilty I was getting a better deal and that I would not face the
same penalties as I would if the jury convicted me.”
4 Defendant told the probation officers that items found in his apartment in a
woman’s purse were being held by his girlfriend for a friend, whom he would not
identify. As for the watches that were sold, he explained that he was just accompanying
another unnamed friend who did not have the necessary identification, so defendant
innocently consummated the transaction. He did indicate that he “feels bad” for the
victims.
4
At the hearing, defendant called his previous attorney to the stand. In summary,
counsel testified that he had had extensive discussions with defendant and his former
codefendant (apparently his girlfriend) who had already entered a guilty plea to
unspecified charges. Counsel had conducted a practice session concerning the
questioning both would face if they testified, and concluded that there was a high risk that
damaging information would come in if they did so. (Such as defendant’s prior theft-
related convictions.) Counsel then explained to defendant that pleading guilty to all
charges was known as “‘throwing yourself on the mercy of the Court’” and that the
probation officer would prepare a sentencing report, although he told defendant that
probation “was basically not going to happen.” Counsel also told defendant that he was
probably facing at least the midterm if convicted after trial, and that if he testified and the
court believed he did so falsely, the upper term was a “long [sic] possibility . . . with all
of the subsequent offenses to be run consecutive.” Defense counsel also discussed with
defendant the advantages that might accrue if he accepted blame and admitted
culpability. When asked if it was possible that defendant “didn’t have a full
understanding of what an open plea to the Court was,” counsel responded that the
maximum sentence had been discussed along with the difference between consecutive
and concurrent sentencing, and the legal factors the judge would consider. Counsel also
discussed his attempts to negotiate a more favorable plea agreement before the case went
to trial, ending with an offer to have defendant testify against a third party to assist in
securing a burglary conviction, but the prosecutor showed no interest.
5
Although in his declaration defendant asserted that counsel told him that he had
only five minutes in which to decide whether to “accept the plea,” defense counsel
described discussions specifically relating to the decision stretching over at least 20 and
possibly as much as 35 minutes during the lunch break, continuing after the return to
court while counsel went over the plea form with defendant.
In arguing in favor of the motion, defendant’s attorney pointed out that as it turned
out, he gained nothing by his plea because he received the maximum anyway.
The trial court expressly found from the evidence that the trial court had rendered
competent assistance and properly advised defendant, and that defendant had failed to
establish good cause to withdraw his plea. It denied the motion.
DISCUSSION
A motion to withdraw a plea of guilty is authorized by section 1018 and is
committed to the sound discretion of the trial court. (People v. Fairbank (1997) 16
Cal.4th 1223, 1254.) The defendant bears the burden of showing good cause by clear and
convincing evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) “Good
cause,” in turn, means that the defendant has established that he or she was operating
under mistake, ignorance, or any other factor overcoming the exercise of his or her free
judgment. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) Finally, a
defendant who relies on a claim of misadvisal by counsel must show prejudice—that is,
that he would not have entered the plea had it not been for the mistake. (In re Moser
(1993) 6 Cal.4th 342, 352; People v. Breslin, supra, at p. 1416.) It is for the trial court, of
6
course, to evaluate credibility. (See People v. Fairbank, supra, at p. 1254; People v.
Nocelotl (2012) 211 Cal.App.4th 1091, 1097-1098.)
Defendant argues in broad terms that his plea was constitutionally involuntary
because he was misadvised “as to his eligibility for probation, his possible maximum
sentence, and the effect of his prior strike.”5 We first note that nowhere in his declaration
below did he assert that either the possibility of probation, or the effects of his prior strike
conviction, was any factor in his decision to enter the plea. Nor did he set out any
complaint concerning advice as to the maximum exposure. Thus, these claims were in
fact waived.
Secondly, it is true that defendant was absolutely ineligible for probation due to
the prior strike. (§ 1170.12, subds. (a)(1), (b)(1).) Hence, the plea form was mildly
misleading insofar as it suggested that the trial court might decide to grant probation.
However, trial counsel, although he did not explain the absolute bar, did inform
defendant that probation “was basically not going to happen.” As for not being advised
of “the effect of his prior strike,” defendant now argues that counsel “did not explain that
the sentence calculation was the result of mandatory doubling of the upper term because
of his strike prior although at the plea hearing and later at the plea withdrawal hearing he
said he had informed him about the enhancements.” As he thus admits, counsel testified
5 In his reply brief defendant repeatedly states that he was “lied” to or “deceived”
about the possibility of probation. He also asserts that not only his own attorney, but the
prosecutor and the court lied to him. We cannot approve of this implication of conscious
misrepresentation. Furthermore, as we note, defendant did not base his motion below on
any claim that he had an expectation of probation.
7
that he did advise defendant of the effects of his prior strike. On the other hand,
defendant’s assertion that the mandatory doubling was not explained is wholly
unsupported by the record. Even if defendant had provided the court with evidence to the
contrary, the court would have been entitled to credit counsel’s testimony. Instead, and
as we have noted, defendant did not even raise this complaint in his declaration.6 Thus,
these points doubly fail.
Defendant also argues that counsel failed to advise him of the “looming probation
violation,” which eventually added eight months to the total term.7 Again, unfortunately
for him, this point was not raised in his declaration and understandably was not addressed
by the parties at the hearing below. Again, any such claim has been waived. The same
is true of the claim made here that trial counsel advised him both that he would do
80 percent of the sentenced time, and 85 percent.8 That defendant did not raise this
below is easily explained by the fact that even if counsel did relay both figures, as the
6 We might also say “So what?” to the claim that counsel did not explain that the
strike conviction compelled a doubled base term, as long as the resulting exposure was
correctly described.
7 The plea form contains the notation “9 y. 4 m.” crossed out, with “8 y. 8 m[.]”
below it. However, the language of the form is limited to describing the punishment “for
the admitted charges and enhancements.”
8 No record citation is given for the supposed 85 percent advice and we have not
located it; counsel did testify that he advised defendant that his credits would be limited
to 20 percent.
8
correct credit limitation is the less severe one, any error in mentioning the 15 percent
limitation cannot have prejudiced defendant.9
Having disposed of these claims that were not specifically raised below—and
which therefore are not in any manner supported by the record—we turn now to what we
believe is the gravamen of the appeal: that defendant was misled about the likely term he
would receive and that trial counsel gave up on the case without cause. We find these
claims equally meritless.
There is at least some record support for the claim that trial counsel was
incorrectly optimistic about the projected sentence, as defendant declared that he was told
he would likely get between four and six years. Trial counsel, on the other hand, denied
promising defendant that the trial court would be lenient. The clear tenor of his
testimony was that he believed the case would be lost and that if defendant and/or the
former codefendant testified, it was likely to lead to the most severe punishment.
Counsel believed that the demonstration of personal responsibility represented by a guilty
plea offered some chance of a more favorable outcome.
9 As a second striker, defendant can accrue no more than 20 percent
goodtime/worktime credits. (§ 667, subd. (c)(5).) If his current conviction had been for a
“serious or violent felony,” he could achieve no more than 15 percent credits. (§ 2933.1,
subd. (a).) However, that statute does not apply to him.
9
Where there is no state involvement, the general rule is that the advice or opinion
of counsel, even if erroneous in retrospect, does not compel permission to withdraw a
defendant’s plea. (People v. Nocelotl, supra, 211 Cal.App.4th at pp. 1096-1097.)
However, it is also recognized that a defendant is entitled to base his decision on pleading
guilty on the informed and competent advice of counsel. (In re Vargas (2000) 83
Cal.App.4th 1125, 1133.) This includes counsel’s evaluation of the strength of the
prosecution’s case. (In re Alvernaz (1992) 2 Cal.4th 924, 933.) But this does not assist
defendant.
He argues that the case against him was not strong, at least with respect to the
items found in defendant’s apartment, theorizing that because they were found in
women’s purses there is a “likelihood” that the stolen items were the result of activity by
defendant’s former codefendant and girlfriend of which he was unaware.10 Pointing out
that this person had already pleaded guilty to some charges, he implies that counsel could
have succeeded in placing all responsibility for these stolen items on the girlfriend. But
the record shows that counsel had conducted a mock cross-examination of both defendant
and the girlfriend, and felt that the results were discouraging, and that placing either, or
both, on the stand risked creating an unfavorable impression.
10 The purses or bags were found in a room evidently shared by defendant and a
female, although the trial record does not identify the roommate.
10
Defendant also suggests that a jury might have found reasonable doubt as to
whether he knew the items he pawned were stolen. Rather puzzlingly, he asserts that
“the People did not have the evidence to charge him with burglary, as to which the
circumstantial evidence (his car at the scene immediately before the burglaries and his
fingerprints on the pawn slips for items taken in the burglary) was perhaps stronger.”
The fact that the People elected not to charge defendant with burglary (and we note that
there was no evidence concerning the driver of the vehicle at the victim’s home, whether
male or female) has little, if any, bearing on the question of whether the case for
receiving or possessing stolen property, including the element of knowledge, was strong.
Defendant further argues that in fact he received no benefit because he was
sentenced to the maximum possible. While this is true, the record supports trial counsel’s
belief that defendant effectively shot himself in the foot by clinging to an evasive and
self-exculpatory version of the events when interviewed by the probation officer.
Certainly nothing demonstrates that trial counsel’s attempt to secure favorable sentencing
for defendant was misguided.
In summary, while defendant’s disappointment with the sentence he received is
understandable, dashed hopes of leniency do not constitute grounds for withdrawal of a
guilty plea. (People v. Gottlieb (1938) 25 Cal.App.2d 411, 415.) Those of his
contentions not wholly unsupported by the record are nevertheless without merit, as we
have explained.
11
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
MILLER
J.
12