People v. Lopez CA4/1

Opinion

Filed 11/18/14 P. v. Lopez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064085

Plaintiff and Respondent,

v. (Super. Ct. No. SCN309047)

RAUL GOMEZ LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael

Kirkman, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and

Respondent.

In this case, defendant and appellant Raul Gomez Lopez was charged in an information with committing a number of acts of sexual molestation on his stepdaughter,

who was under the age of 10 at the time of the alleged offenses. The victim, her mother

and an aunt made statements to law enforcement officials that substantiated the

allegations set forth in the information. If convicted of all of the offenses, defendant

could have been given a life sentence. After rejecting earlier offers that exposed

defendant to longer periods of imprisonment, on the day his preliminary hearing was

scheduled to commence defendant accepted the prosecution's offer to dismiss all but two

of the substantive charges in exchange for defendant's agreement to plead guilty to the

remaining two charges and be sentenced to a stipulated 29-year prison term. The trial

court accepted defendant's change of plea and scheduled a sentencing hearing. However,

prior to his sentencing, defendant moved to withdraw his plea. The trial court denied his

motion and sentenced him to 29 years of imprisonment.

On appeal, defendant contends the trial court erred in denying his motion to

withdraw his plea because he did not understand his plea would require that he register as

a sex offender; because, on the day of his plea, he was concerned about his teenage

daughter who was missing and unfortunately found dead the following day; and because

his attorney had not provided him with an adequate defense. We find no error. The

record supports the trial court's finding that the sex offender registration requirement was

explained to defendant by his counsel and that defendant's concern for his missing

daughter at the time of his plea did not give rise to duress that prevented him from

voluntarily changing his plea. The record also supports the trial court's determination

2 that defendant was adequately represented by counsel, whose efforts helped defendant

avoid a life sentence. Accordingly, we affirm the judgment of conviction.

FACTUAL AND PROCEDURAL HISTORY

On August 16, 2012, the San Diego County District Attorney filed a complaint

which alleged that defendant had committed eight separate offenses against his

stepdaughter: sexual penetration of a child under the age of 10 (Pen. Code,1 § 288.7,

subd. (b); count 1), two counts of a forcible lewd act on a child under the age of 14

(§ 288, subd. (b)(1); counts 2 & 3), four counts of a lewd act on a child under the age of

14 (§ 288, subd. (a); counts 4, 5, 6 & 7), and making a criminal threat (§ 422; count 8).

With respect to the lewd acts that were the subject of counts 4 and 5, the complaint

further alleged defendant had substantial sexual conduct with a child under 14.

(§ 1203.066, subd. (a)(8).) The complaint also alleged defendant had suffered a prior

serious felony conviction (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and a strike

prior (§ 667, subds. (b)-(i), 668 & 1170.12).

Defendant was initially represented by Michael Washington, who appeared with

defendant on August 24, 2012. According to Washington, he met with defendant at the

time of the appearance and discussed the police report that Washington had received.

The police report included statements from defendant's wife, his wife's sister and his

stepdaughter. In discussing the police report, defendant admitted to molesting his

stepdaughter, appeared remorseful and inquired about his potential punishment. In light

1 All further statutory references are to the Penal Code. 3 of his conversation with defendant, Washington believed it was in defendant's best

interest to negotiate a plea agreement that would avoid imposition of a life sentence.

Following defendant's initial appearance, Washington received additional

discovery that included a recorded copy of defendant's interview with police, which was

conducted in Spanish; an English language summary of the interview prepared by the

police was also included. Although Washington did not have the interview translated, the

summary indicated that defendant had been given his Miranda2 rights and waived them

and that he incriminated himself.

Washington asked the prosecutor to consider striking defendant's 16-year-old prior

conviction, but the request was denied. The prosecutor offered defendant a plea

agreement that would require a 41-year term of imprisonment; the prosecutor then

offered a deal with a 37-year term and, on October 24, 2012, the day of the scheduled

preliminary hearing, made a "final" offer of a 29-year prison term. Through a translator,

Washington discussed the offer with defendant, and defendant agreed to take it.

Defendant executed a change of plea form, appeared before the trial court and plead

guilty to one count of committing a forcible lewd act on a child under 14 (count 2) and

one count of committing a lewd act on a child under 14 (count 4); he also admitted the

serious felony prior and strike prior.

The day after defendant entered his plea, his teenage daughter, who had been

missing, was found dead.

2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). 4 Following his plea, defendant retained counsel who filed a motion to withdraw

defendant's plea. As he does on appeal, defendant argued his plea was defective because:

the trial court did not advise him that upon his release from prison he would be required

to register as a sex offender; because defendant's daughter's disappearance constituted

duress; and because Washington had failed to adequately investigate the possibility of

challenging admission of the statements defendant made in the police interview and had

made no motion to strike defendant's prior conviction. Both Washington and defendant

testified at the hearing on the motion to withdraw. The trial court denied the motion and

sentenced defendant to a term of 29 years in prison.

Defendant filed a notice of appeal. Counsel appointed to represent defendant on

appeal filed a brief under the procedures set forth in People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738; at our invitation, defendant filed a

supplemental brief. We then directed the parties to file briefs with respect to issues

identified in counsel's initial brief.

DISCUSSION

I

On appeal, defendant contends he did not fully comprehend the consequences of

his plea because the trial court did not verbally advise him that he would be required to

register as a sex offender. We find no error.

At the hearing on the motion to withdraw, Washington testified that, prior to

receiving the prosecutor's final offer, he had discussed with defendant the requirement

5 that upon release from prison he register as a sex offender. Washington also testified

that, on the day defendant changed his plea, he again discussed the registration

requirement with defendant and that defendant asked Washington how leaving the

country would affect his obligation to register and how often he had to register.

Consistent with Washington's testimony, the change of plea form defendant initialed

states that he discussed the registration requirement with Washington.

Washington's testimony and the change of plea form are more than sufficient to

establish that defendant was fully advised he would be required to register as a sex

offender following his term of imprisonment. (See People v. Panizzon (1996) 13 Cal.4th

68, 83 [executed change of plea form sufficient to establish admonishment and knowing

waiver].) There is no requirement that, in addition to information acknowledged in the

change of plea form, a trial court must also verbally advise a defendant with respect to

the registration requirement imposed on sex offenders. (Ibid.) Thus, the trial court did

not err in rejecting defendant's contention that he did not fully comprehend the

consequences of his plea.

II

Next, defendant argues his plea was the result of duress. As he did in the trial

court, defendant contends that, at the time of his plea, he was concerned about his

missing daughter and did not have enough time to fully consider the prosecution's offer

and its implications. Like the trial court, we reject these contentions.

We of course agree that a plea may be withdrawn if it appears from the record the

6 defendant "'"was unduly and improperly influenced either by hope or fear in the making

of it."'" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1210, quoting People v. Campos

(1935) 3 Cal.2d 15, 17.) We also recognize that where there is evidence a defendant was

surprised and under unfair compulsion at the time of a guilty plea, a motion to withdraw

should be granted. (See People v. McGarvy (1943) 61 Cal.App.2d 557, 564.) Thus, in

People v. Campos, the defendant was permitted to withdraw his guilty plea to murder

because, although the district attorney had represented that he would not be sentenced to

death, following his guilty plea, the defendant was in fact given a death sentence. In

People v. McGarvy, the guilty plea was vacated because the attorney appointed to

represent the defendant was introduced to him on the morning of the disputed plea and

only spoke with the defendant for 20-30 minutes before the plea was entered.

Unlike the records considered in People v. McGarvy and People v. Campos, there

is nothing in this record that suggests defendant's plea was in any sense involuntary. The

record shows that, at the time of his plea, defendant had been represented by Washington

for more than two months and had spoken to Washington at some length about the

overall negotiation strategy before the final plea offer was accepted. The trial court

found as a matter of fact that defendant's missing daughter did not appear to impair his

ability to consider the prosecution's offer and knowingly accept it. On this record, the

trial court was fully warranted in finding that the plea was knowing and voluntary.

III

Finally, defendant argues that Washington failed to provide him with the adequate

7 assistance of counsel. In particular, he complains about Washington's failure to make

motions to suppress his statements to police and to strike his conviction under People v.

Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

When the prosecution proffers a plea bargain, "[t]he defendant can be expected to

rely on counsel's independent evaluation of the charges, applicable law, and evidence,

and of the risks and probable outcome of trial." (In re Alvernaz (1992) 2 Cal.4th 924,

933.) If counsel does not act competently in advising a defendant with respect to a

proffered plea bargain and the defendant accepts the offer, the defendant may thereafter

obtain relief from his or her plea. (Id. at p. 934.)

Here, defendant was charged with crimes for which he could have received a life

sentence. The prosecution's case was supported not only by defendant's own statements

to police, but by statements made by defendant's wife, his wife's sister and the victim.

Given the strength of the prosecution's case and the risk of a life term, Washington's

decision to pursue plea negotiations was self-evidently reasonable.

Washington's decision to forego Miranda and Romero litigation was also

reasonable under the circumstances. Washington explained at the motion to withdraw

that he did not believe a Miranda motion with respect to the statement defendant made to

police had a great deal of value. Washington stated that the English language summary

he reviewed indicated that defendant had in fact waived his Fifth Amendment rights.

Washington further testified that the prosecution had a relatively strong case supported

not only by the victim's testimony but also by the testimony of defendant's wife and her

8 sister. Washington concluded and the trial court agreed that, in light of defendant's

statements to the police, even if a motion to suppress was successful, defendant was in no

position to contradict the witnesses because, in any event, defendant's statements could

be used to impeach him. Thus, even if a Miranda motion was successful, given the

prosecution witnesses' likely testimony and defendant's inability to contradict them, trial

would nonetheless present a substantial risk of a verdict that would result in a life term.

Similarly, even if Washington were successful in convincing the trial court to

strike defendant's prior conviction, the allegation that he penetrated a child under the age

of 10 carried with it the risk of a life term. Thus, at the time the prosecutor made a final

offer of a 29-year term, which included admission of the prior conviction, Washington

could reasonably conclude that accepting the offer was still far less risky than attempting

to have the prior stricken and then prevailing at trial on the penetration count.

Given the risks to defendant and the relatively small potential advantage to be

gained from either a Miranda motion or a Romero motion, Washington's decision to

forego those alternatives in favor of continuing negotiation with the prosecutor was

reasonable and rational. The record also shows Washington fully informed defendant of

the relative strength of his case and the risks of trial. In short, the record demonstrates

that Washington provided adequate representation with respect to the plea bargain

offered by the prosecution. (See In re Alvernaz, supra, 2 Cal.4th at p. 933.)

On appeal, in addition to arguing Washington's performance was inadequate,

defendant contends that retained counsel was inadequate in pursuing the motion to

9 withdraw because he also failed to obtain and present an English language translation of

the police interview. The difficulty for defendant is, again, in demonstrating he was

prejudiced by the absence of a translation. (See Strickland v. Washington (1984) 466

U.S. 668, 699-700.) As we have discussed, even if successful, a Miranda motion would

not have altered the very substantial risks defendant faced at the time the prosecution

made its 29-year offer and, thus, the substantial benefit of the offer. In this context,

retained counsel's failure to obtain a translation of the interview would not have improved

the likelihood of obtaining relief from the plea because it would not have undermined the

rationale for accepting the prosecution's offer: the strength of the prosecution's case even

if it were unable to offer defendant's statement in its case-in-chief.

DISPOSITION

The judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.