People v. Wasson CA3

Filed 5/4/15 P. v. Wasson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----

THE PEOPLE, C071430

Plaintiff and Respondent, (Super. Ct. No. CM028831)

v.

JESSE MICHAEL WASSON,

Defendant and Appellant.

For the third time, defendant Jesse Michael Wasson asks this court to overturn the
trial court’s denial of a motion to withdraw his plea, entered nearly 17 years ago, in case
No. CM011579 (1998 matter). He contends he was misinformed about the consequences
of pleading to violating Penal Code section 422, making criminal threats, because he was
told it was not a strike at the time and that it would not become a strike in the future.
(Pen. Code, § 422; unless otherwise stated, statutory section references that follow are to
the Penal Code.) While it was true section 422 was not a strike when defendant agreed to
plead no contest to the offense, nearly two years later the electorate passed
Proposition 21, adding section 422 to the list of serious felonies in section 1192.7,
subdivision (c). (§ 1192.7, subd. (c)(38), amended by the electorate at the Mar. 7, 2000

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Primary Election, operative Mar. 8, 2000.) After Proposition 21, the offense qualified as
a strike under California’s Three Strikes Law. (§§ 1192.7, subd. (c)(38); 667, subds. (b)-
(i) & 1170.12.)
Like before, we again conclude defendant has failed to carry his burden of
showing he is entitled to withdraw his plea. We also find that even if defense counsel
was ineffective in advising him section 422 would not be a strike in the future, we find
the error harmless on this record. We therefore again affirm the judgment.

FACTS AND PROCEEDINGS

A detailed recitation of the facts underlying defendant’s offenses is unnecessary to
resolve this appeal. Briefly summarized, in April 2008, defendant was stopped by a law
enforcement officer for a vehicle infraction. Defendant got out of his car to submit to
field sobriety tests and ran away when the officer told him he would be patted down for
weapons. The officer chased defendant, used his taser and defendant surrendered. He
was arrested and was carrying a loaded .9 millimeter gun. Law enforcement obtained a
search warrant and found methamphetamine manufacturing equipment and supplies in his
garage and home as well as a gun case matching the gun defendant was carrying at the
time of his arrest.
An information filed in July 2008 charged defendant with being a felon in
possession of a firearm (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats.
2010, ch. 711, § 6)] [count 1]); unlawful possession of ammunition (former § 12316,
subd. (b)(1) [now § 30305, subd. (a)(1) (Stats. 2010, ch. 711, § 6)] [count 2]); possession
of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)
[count 3]); carrying a concealed weapon (former § 12025, subd. (a)(2) [now § 25400,
subd. (a) (Stats. 2010, ch. 711, § 6] [count 4]); possession of concentrated cannabis
(Health & Saf. Code, § 11357, subd. (a) [count 5]); manufacturing a controlled substance
other than PCP (Health & Saf. Code, § 11379.6, subd. (a) [count 6]); and resisting,

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obstructing, or delaying a peace officer (§ 148, subd. (a)(1) [count 7]). The information
alleged various enhancements, including that defendant had two prior strikes, one of
which was his section 422 conviction under the plea agreement in the 1998 matter.
(§§ 667, subds. (b)-(i), 1170.12, subd. (b)(1) & 1192.7, subd. (c)(38).)
Defendant requested before trial that the court strike the special allegation that his
section 422 conviction was a strike, or, in the alternative, to withdraw his plea in the 1998
matter. The trial court denied the motion, and defendant sought both appellate and writ
relief in this court. We summarily denied the petition for writ of error coram vobis
(People v. Wasson (Dec. 11, 2008, C060547)), and later issued an unpublished opinion
affirming the trial court and finding defendant had failed to show he was entitled to
withdraw his plea. (People v. Wasson (Oct. 15, 2009, C060108) 2009 Cal.App.Unpub.
LEXIS 8239 (Wasson I).)
The case was tried without a jury and defendant was convicted of all charges.
Prior to sentencing, defendant renewed his motion to withdraw his 1998 plea. Based on
language in our unpublished decision, the trial court held a contested hearing to
determine whether the change in law under Proposition 21 violated a significant term of
defendant’s plea bargain thereby depriving him of the benefit of his bargain. (See
Wasson I, supra, 2009 Cal.App.Unpub. LEXIS 8239 at pp. *9-10.) Defendant, his
counsel in the 1998 matter, and the prosecutor testified about the circumstances
surrounding the plea.
Defendant’s counsel admitted he had told defendant a section 422 conviction was
not a strike at the time and would not be a strike in the future. Based on such advice,
defendant claimed he agreed to the plea bargain. Had he known a section 422 conviction
might be used as a strike in the future, he would not have pleaded no contest and instead
would have insisted on going to trial.
While defendant’s counsel acknowledged he and defendant had discussed future
strikes, counsel testified that that was only one of many concerns defendant had before

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agreeing to the plea bargain. Defendant was also greatly concerned about the length of
any sentence and his ability to earn conduct credits while incarcerated. According to
counsel, the “lynch pin” of the plea bargain was the prosecutor agreeing to strike
defendant’s strike for a prior section 459 conviction, which substantially shortened his
sentence and allowed him to earn 50 percent credits rather than 20 percent credits if the
strike was not stricken.
The prosecutor testified that he never promised or represented that a section 422
conviction could never be used as a strike in the future. Nor would he have ever made
such an assertion.
Following the contested hearing, the court denied the renewed motion to withdraw
the plea. The court found the plea bargain did not contain any promise that section 422
would not be a strike in the future. It also concluded defendant’s counsel had not been
ineffective when the plea was taken.
Defendant was sentenced to 25-years-to-life each for counts 1 through 6, and to a
consecutive one-year term for count 7, together with various sentences for the prison
priors and other alleged enhancements, which the court found true. Defendant timely
appealed.

DISCUSSION

I

Motion to Withdraw 1998 Plea

Reiterating a claim made in his prior appeal, defendant asserts that the trial court
erred in denying his motion to withdraw his no contest plea in the 1998 matter because he
was misled about the consequences of pleading to a section 422 offense. (See Wasson I,
supra, 2009 Cal.App.Unpub. LEXIS 8239 at p. *7 [“Defendant’s argument is premised
on the assertion that he was misinformed as to the consequences of his plea; he was told
the section 422 offense to which he was pleading could not be used in the future as a

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strike”].) Defendant concedes that “there are no statements in either the written plea
agreement or at the change of plea hearing which explicitly promise that violation of
section 422 would not become a strike in the future.” Defendant, however, contends such
a promise was implied because section 422 was not a strike when defendant pleaded
guilty, and parties are deemed to incorporate then-existing law as a term of their
agreement.
Respondent, on the other hand, argues that this court, in Wasson I, previously
decided the legal issue of whether the trial court properly denied defendant’s request to
withdraw his plea in the 1998 matter. Citing the doctrine of law of the case, respondent
contends defendant is precluded from raising the issue again.
The doctrine of law of the case applies “ ‘ “where, upon an appeal, the [reviewing]
court, in deciding the appeal, states in its opinion a principle or rule of law necessary to
the decision . . . .” ’ ” (People v. Turner (2004) 34 Cal.4th 406, 417.) The announced
principle or rule of law “ ‘ “becomes the law of the case . . . , both in the lower court and
upon subsequent appeal . . . .” ’ ” (Ibid.) Courts will not apply the doctrine “ ‘where its
application will result in an unjust decision,’ ” however. (Ibid.)
In Wasson I, we held that defendant did not carry his burden of showing he was
entitled to relief from his plea because he failed to show he met the requirements of a writ
of error coram nobis, including that he had been diligent in moving to withdraw his plea.
We treated defendant’s motion to withdraw his plea as a petition for such a writ because
judgment had long since been pronounced in the 1998 matter. (People v. Quesada (1991)
230 Cal.App.3d 525, 531, fn. 2, superseded by statue on other grounds [“ ‘a motion to set
aside a judgment of conviction and for permission to withdraw a plea of guilty may
ordinarily be considered as a petition for writ of error coram nobis’ ”]; § 1018 [upon a
showing of good cause, a defendant may withdraw his guilty plea before the entry of
judgment].) (Wasson I, supra, 2009 Cal.App.Unpub. LEXIS 8239 at p. *4.) We also
discussed whether the change in law under Proposition 21 violated a significant term of

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defendant’s plea bargain, and, thus, ran afoul of due process. (Id. at pp. *10-11.)
Because the record on appeal did not contain the specifics of defendant’s 1998 plea
bargain, we were unable to assess whether the change in law violated a significant term
of the agreement. (Id. at p. *11.) It was this latter portion of our opinion that the trial
court relied upon in conducting the contested hearing below.
Assuming for sake of argument that the law of the case doctrine does not apply--at
least as to the issue of whether the change in law violated a significant term of
defendant’s plea bargain--we find the trial court did not err in denying defendant’s
renewed motion to withdraw his plea. Contrary to defendant’s contention, the law
existing when an accused pleads to an offense does not give rise to an implied promise
that he will not be subject to future changes in the law.
In 2013, the Supreme Court addressed the issue in Doe v. Harris (2013) 57 Cal.4th
64 (Harris). There, the Supreme Court accepted the Ninth Circuit’s request to address
whether “ ‘[u]nder California law of contract interpretation as applicable to the
interpretation of plea agreements, does the law in effect at the time of a plea agreement
bind the parties or can the terms of a plea agreement be affected by changes in the law?’ ”
(Id. at p. 66.) The Supreme Court responded that “the general rule in California is that
the plea agreement will be ‘ “deemed to incorporate and contemplate not only the
existing law but the reserve power of the state to amend the law or enact additional laws
for the public good and in pursuance of public policy. . . .” ’ ” (Harris, supra, 57 Cal.4th
at p. 66.)
The defendant in Harris entered into a plea agreement under which he agreed to
plead nolo contendere to a single count of committing a lewd and lascivious act on a
child under the age of 14 in exchange for the dismissal of several additional sexual
charges. (Harris, supra, 57 Cal.4th at p. 66.) The agreement required the defendant to
register as a sex offender under former section 290. (Ibid.) Although the statute at the
time required persons convicted of specified sex offenses, including the offense to which

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the defendant pleaded, to register and to provide their fingerprints and photographs, such
information was not open for public review. (Former § 290, as amended by Stats.1989,
ch. 1407, § 4, pp. 6191-6195.) That changed when the Legislature adopted “Megan’s
Law” (§ 290.46, added by Stats. 2004, ch. 745, § 1, pp. 5798-5803), which among other
things, provided a means for the public to obtain the names, addresses, and photographs
of the state’s registered sex offenders. (Harris, supra, 57 Cal.4th at p. 66.) The law was
expressly made retroactive and thus applicable to the defendant’s conviction. (Id. at
p. 67.)
In a subsequent federal lawsuit, the defendant argued his plea bargain contained an
implied promise that the privacy protections contained in the law in effect at the time of
his plea would govern his future obligations. (Harris, supra, 57 Cal.4th at p. 68.) Thus,
the amended law’s public notification provisions would violate his plea agreement. (Id.
at p. 67.) The Supreme Court disagreed. (Id. at pp. 73-74.) The court found that “a plea
agreement’s reference to a statutory consequence attending a conviction, even when
coupled with prosecutorial and judicial silence on the possibility the Legislature might
amend the statute, does not give rise to an implied promise that the defendant, by
pleading guilty or nolo contendere, will be unaffected by a change in the law.” (Id. at
p. 73.)
The same rule applies here. No implied promise exists in defendant’s plea
agreement that any future changes in the statutory consequences of pleading guilty to a
section 422 violation would not affect him, including whether section 422 could be
considered a future strike. In other words, parties like defendant are not insulated “from
changes in the law that the Legislature has intended to apply to them.” (Harris, supra,
57 Cal.4th at p. 66.) Considering Proposition 21’s language and the statutory changes it
implemented, such an intent is apparent.
Proposition 21 amended Penal Code section 1192.7 and added Penal Code
sections 667.1 and 1170.125. (People v. James (2001) 91 Cal.App.4th 1147, 1149

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(James).) When added, section 667.1 provided: “ ‘Notwithstanding subdivision (h) of
Section 667, for all offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to
those statutes as they existed on the effective date of this act, including amendments
made to those statutes by this act.’ ” (Ibid.) We note that section 667.1 has since been
amended and currently provides: “Notwithstanding subdivision (h) of Section 667, for
all offenses committed on or after November 7, 2012, all references to existing statutes in
subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on
November 7, 2012.”
Similarly, section 1170.125 provided: “ ‘Notwithstanding Section 2 of
Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses
committed on or after the effective date of this act, all references to existing statutes in
Section 1170.12 are to those statutes as they existed on the effective date of this act,
including amendments made to those statutes by this act.’ ” (James, supra,
91 Cal.App.4th at p. 1149.) Proposition 21 took effect on March 8, 2000. (Ibid.) We
further note that section 1170.125 has since been amended and currently provides:
“Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994,
General Election, for all offenses committed on or after November 7, 2012, all references
to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they existed
on November 7, 2012.”
These statutory provisions make clear that to determine whether a felony
committed before the passage of Proposition 21 qualifies as a strike for purposes of any
offenses committed after Proposition 21’s effective date--like the offenses defendant
committed in this case--one looks to the definition of serious or violent felonies when
Proposition 21 went into effect. (James, supra, 91 Cal.App.4th at p. 1150 [applying
Proposition 21’s new statutory provisions to felonies committed before the effective date

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of Proposition 21 does not violate the prohibition against ex post facto laws if the current
felony offenses were committed on or after the effective date of Proposition 21].)
Treating defendant’s section 422 conviction as a strike for purposes of the present
case thus does not violate a significant term of his 1998 plea bargain since the agreement
does not contain an implied promise that defendant’s section 422 conviction could never
be used as a future strike. The trial court, therefore, did not err in denying defendant’s
motion to withdraw his 1998 plea.

II

Ineffective Assistance of Counsel

Defendant next contends the trial court erred by denying his motion to withdraw
his plea based on ineffective assistance of counsel. He argues his counsel in the 1998
matter was ineffective because counsel told him section 422 would not be considered a
strike in the future since it was not a strike when defendant agreed to the plea bargain.
Defendant claims that had he known a section 422 conviction could potentially have
future strike consequences, he would not have pleaded no contest to the charges.
Even if defendant could establish ineffective assistance based on counsel’s
purported misadvice about the potential future consequences of a section 422 conviction,
we conclude he has failed to demonstrate the requisite prejudice to justify withdrawing
his plea. On that basis, we reject his claim. (Strickland v. Washington (1984) 466 U.S.
668, 697, 80 L.Ed.2d 674, superseded by statue on other grounds [“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed”] (Strickland).)
“A criminal defendant is constitutionally entitled to effective assistance of
counsel.” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1418 (Breslin); U.S. Const.,
6th Amend.; Cal. Const., art. I, § 15; Strickland, supra, 466 U.S. at p. 697.) To establish
an ineffective assistance claim, defendant must show, by a preponderance of the

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evidence: (1) that counsel’s performance fell below the standard of a competent
advocate; and (2) the deficient performance prejudiced the defendant. (Breslin, supra,
205 Cal.App.4th at p. 1418; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Where, like here, a defendant challenges a guilty or no contest plea based on
ineffective assistance of counsel, the prejudice requirement “ ‘focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process.’ ” (Breslin, supra, 205 Cal.App.4th at p. 1419.) “ ‘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.’ ” (Ibid.; In re Resdendiz (2001) 25 Cal.4th 230,
253, abrogated on another ground in Padilla v. Kentucky (2010) 559 U.S. 356, 370-371,
176 L.Ed.2d 284.)
“ ‘In determining whether a defendant, with effective assistance, would have
accepted [or rejected] the plea offer, pertinent factors to be considered include: whether
counsel actually and accurately communicated the offer to the defendant; the advice, if
any, given by counsel; the disparity between the terms of the proposed plea bargain and
the probable consequences of proceeding to trial, as viewed at the time of the offer; and
whether the defendant indicated he or she was amenable to negotiating a plea bargain.’ ”
(Breslin, supra, 205 Cal.App.4th at p. 1421.) “ ‘[A] defendant’s self-serving statement
. . . [regarding whether] with competent advice he or she would [or would not] have
accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s
burden of proof as to prejudice, and must be corroborated independently by objective
evidence. A contrary holding would lead to an unchecked flow of easily fabricated
claims.’ ” (Ibid.)
In this case, defendant testified that he would not have accepted the plea had he
known a section 422 conviction might be a strike in the future. Other evidence in the
record, however, belies his self-serving statement.

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 For example, defendant’s counsel testified that future strike consequences were
merely one of many issues concerning defendant during the plea bargain process.
Defendant was also concerned about the length of any prison sentence and wanted the
1998 matter to be resolved with him serving the least possible time and suffering the least
severe consequences for his actions. Defendant also cared about whether any of the
offenses were currently strikes.
Most importantly, however, defendant wanted stricken the special allegation that
he had suffered a prior strike--a section 459 burglary conviction. Having his previous
strike stricken allowed defendant to avoid having his sentence doubled under the three
strikes law. (§§ 667, subd. (e)(1) and 1170.12, subd. (c)(1).) And, for purposes of
earning credits, it also enabled him to serve only 50 percent of his sentence rather than
the required 80 percent when an individual has a prior strike. (§§ 667, subd. (c)(5) and
1170.12, subd. (a)(5).)
This aspect of the agreement--the prosecutor agreeing to strike the section 459
strike--was described as the “lynch pin” of the bargain. Such a characterization coheres
with defense counsel’s statements during the sentencing hearing nearly 17 years earlier:
“But of course, Mr. Wasson has a first degree burglary . . . the striking of which was the
consideration for the plea.”
The benefit of having the strike stricken was summed up as follows by the
attorney who represented defendant regarding the 1998 prosecution: “ . . . it’s far more
advantageous to have a plea that has fifty percent credits than having your sentence
doubled and having to serve eighty percent of the time, only having twenty percent
credits--can [sic] calculate that in my head but pretty significant.” The prosecutor
likewise confirmed the importance of this aspect of the agreement.
Had defendant proceeded to trial on the 1998 charges, and had the prosecution
chosen to seek maximum penalties, defendant faced a total punishment of eight years
eight months of incarceration with only 20 percent credits. The plea bargain reached

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burdened defendant with only five years four months while earning 50 percent conduct
credits--a significantly lower amount of time.
And had defendant been convicted of all charges, he still would find himself in the
same predicament. In other words, a conviction following trial would have subjected him
to the same strike consequences for the section 422 conviction in the present matter even
though it was not a strike during the 1998 matter. (James, supra, 91 Cal.App.4th at
p. 1150 [“We hold that if a defendant’s current offense was committed on or after the
effective date of Proposition 21, a determination whether the defendant’s prior conviction
was for a serious felony within the meaning of the three strikes law must be based on the
definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on
March 8, 2000”].)
Nor has defendant adduced any evidence suggesting the prosecutor might have
ultimately agreed to a plea that would have prevented the section 422 offense from being
considered a strike in the future. (In re Resendiz, supra, 25 Cal.4th at p. 253-254
[petitioner failed to produce any substantial evidence that the prosecutor would have
agreed to a plea allowing him to avoid adverse immigration consequences].) On the
contrary, the prosecutor testified he never would have made defendant such an offer.
“In determining whether or not a defendant who has pled guilty would have
insisted on proceeding to trial had he received competent advice, an appellate court also
may consider the probable outcome of any trial, to the extent that may be discerned.” (In
re Resdendiz, supra, 25 Cal.4th at p. 254.) Based on our review of the record, we
conclude defendant was unlikely to prevail at trial.
In the 1998 matter, defendant was charged with three counts: (1) making criminal
threats (§ 422); (2) being a felon in possession of a firearm (former § 12021, subd. (a));
and (3) possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
Defendant’s counsel acknowledged that he had no defense to the felon in possession and
methamphetamine charges, and that the special allegations regarding a prior strike and

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prior prison term would have been found true. Although defendant believed he had a
necessity defense against the section 422 charge, his attorney did not agree. Comparing
the elements of a necessity defense to the facts underlying defendant’s section 422
conviction confirms the unavailability of such a defense.
Necessity is an affirmative defense recognized based on public policy
considerations. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1134-1135.) To
establish the defense of necessity, a defendant must present evidence sufficient to show
that he “violated the law (1) to prevent a significant and imminent evil, (2) with no
reasonable legal alternative, (3) without creating a greater danger than the one avoided,
(4) with a good faith belief that the criminal act was necessary to prevent the greater
harm, (5) with such belief being objectively reasonable, and (6) under circumstances in
which she did not substantially contribute to the emergency.” (Id. at p. 1135.)
The section 422 charge in the 1998 matter was based on defendant threatening to
kill his ex-girlfriend while holding a gun to her head. According to documents in the
record, defendant showed up at her residence, followed her into the house, kicked in the
bathroom door after she had locked herself inside, and slapped her causing a black eye.
He threatened to kill her multiple times, many of which the victim recorded after
contacting the police. Defendant claimed he took such actions because the victim had
threatened and bothered his new girlfriend.
Even if we were to view the evidence in the light most favorable to defendant, the
record reveals no exigent circumstance requiring him to go over to the victim’s house,
follow her inside, and break down the bathroom door then threaten to kill her while
holding a gun to her head. Instead, defendant could and surely should have taken the
reasonable legal alternative of contacting the police to report the victim’s alleged actions
and then let law enforcement handle the issue if in fact he was concerned on behalf of his
new girlfriend. The defense of necessity, then, would have been unavailing had
defendant gone to trial. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035-1036 [felon

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defendant’s explanation for possessing a firearm, even if believed by the jury, insufficient
as a matter of law to establish defense of necessity].)
Defendant fails to persuade us that he would have rejected the distinctly favorable
outcome he obtained by entering into the plea agreement, and would instead have insisted
on proceeding to trial, had he known that his section 422 conviction might conceivably
be declared a strike sometime in the future. (In re Resendiz, supra, 25 Cal.4th at p. 254
[petitioner failed to show how he might have been able to avoid conviction or what
specific defenses might have been available to him at trial].) We are convinced beyond a
reasonable doubt that defendant would have agreed to the favorable plea bargain even if
he had been informed that his section 422 conviction could possibly be used as a strike if
the law changed in the future. This is especially so since any change in the law regarding
section 422 would only affect defendant if he committed future crimes--something we
noted in Wasson I as being entirely within defendant’s control. (Wasson I, supra,
2009 Cal.App.Unpub. LEXIS 8239 at pp. *11-12 [“ . . . here the change making
defendant’s 1998 section 422 conviction a strike will have no effect unless and until
defendant is convicted of a felony. The change simply punishes defendant’s recidivism,
a matter within defendant’s control”].)

DISPOSITION

The judgment is affirmed.

HULL , Acting P. J.

We concur:

ROBIE , J.

MAURO , J.

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