People v. Sanchez CA3 ( 2015 )

Filed 6/25/15 P. v. Sanchez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C073886
Plaintiff and Respondent, (Super. Ct. Nos. CRF085927,
CRF101266)
v.
FABIAN ANDY SANCHEZ,
Defendant and Appellant.
This case returns after our 2012 reversal of defendant Fabian Sanchez’s
convictions for burglary, petty theft with a prior, and prowling based on the ineffective
assistance of his trial counsel. On remand, defendant pled no contest to first degree
burglary (Pen. Code, § 459)1 with a special allegation that the dwelling was occupied
during the commission of the burglary (§ 667.5, subd. (c)(21)), petty theft with a prior
1 Further undesignated statutory references are to the Penal Code.
1
(§§ 484, subd. (a), 490.5, subd. (a),2 666, subd. (b)) and misdemeanor prowling (§ 647,
subd. (h)). He admitted a prior strike conviction and prior serious felony. (§§ 667,
subds.(a)(1), (c), (e)(1).) His plea was deemed an admission of a violation of probation
in another burglary case. The trial court sentenced him to an aggregate term of 14 years
and four months and later granted his request for a certificate of probable cause
(§ 1237.5).
On appeal, defendant again challenges the adequacy of his legal representation,
contending: (1) his second counsel had a conflict of interest and the trial court erred in
not replacing her; (2) the People must re-offer him the original plea offer of eight years
and four months; and (3) counsel provided ineffective assistance. Although we find
much of the procedural history in this case troubling, as we detail post, we conclude that
defendant has failed to show prejudicial error. Accordingly, we must affirm.
BACKGROUND
We granted the People’s request to take judicial notice of the record in defendant’s
prior appeal, case No. C066742. We borrow liberally from our previous opinion in that
case. (People v. Sanchez (Aug. 30, 2012, C066742) [nonpub. opn.] (Sanchez).)
2010 Proceedings
“Prior to the preliminary hearing, defendant was offered a plea deal to resolve both
the burglary and probation violation cases. Defendant would plead to the burglary and
admit the occupied dwelling and prior serious felony conviction enhancements. The
People would dismiss the prior strike allegation. Defendant would be sentenced to an
aggregate term of eight years and four months, consisting of a low term of two years on
2 As we discuss in more detail post, the amended information erroneously charged (and
defendant pled no contest to) count 2 as a violation of section 490.5 (shoplifting) rather
than section 488 (regular petty theft). At sentencing, in the presentence report, and in the
abstract of judgment, count 2 was treated as if properly charged.
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the burglary conviction, plus five years for the prior serious felony enhancement and 16
months on the separate probation violation. The offer was to remain open until the
preliminary hearing. Defendant rejected the plea. During the preliminary hearing,
defense counsel argued defendant should not be held to answer on the burglary charge,
because even though the surveillance video showed him briefly entering the garage it
could not be inferred he intended to steal from the garage, only that he intended to
commit theft from the vehicle.” (Sanchez, supra, C066742, slip opn. at p. at *2.)
At trial, defense counsel conceded the video surveillance of the burglary
established defendant had committed the petty theft from the truck and the prowling
offenses. Counsel argued that although defendant went into the garage, he was there only
a few seconds and did not take anything, and there was no evidence he had the intent to
steal from the garage. (Sanchez, supra, C066742, slip opn. at p. at *2.)
A jury found defendant guilty of all counts and found the special allegation
attached to the burglary count true. In bifurcated proceedings, the court found the prior
conviction allegation true. The trial court sentenced defendant to an aggregate term on
both cases of 14 years and four months in prison. (Sanchez, supra, C066742, slip opn. at
p. at *3.)
On appeal, we found defense counsel rendered ineffective assistance. “The record
here establishes that from the earliest stages of the proceedings and throughout, defense
counsel was operating under a misapprehension of the intent required for burglary.
Specifically, counsel wrongly believed defendant had to have intended to enter the garage
with the intent to commit a theft or felony within the garage. Counsel rested his defense
on this erroneous view of the law. As a result, his defense counsel effectively argued
defendant was guilty of burglary.” (Sanchez, supra, C066742, slip opn. at p. at *4.)
“[A]s a direct result of counsel's misunderstanding of the law, he argued a legal theory
that was unsupported by the law on the intent required for burglary. He also failed to
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argue an identity defense, a defense that could be supported by the evidence.” (Id. at p.
*5.)
We concluded defendant was not provided effective assistance of counsel and no
“true adversarial criminal trial was conducted.” (Sanchez, supra, C066742, slip opn. at p.
*5.) Accordingly, we reversed the conviction and remanded for further proceedings. (Id.
at p. *6.)
2012-2013 Proceedings
On remand, the People moved to amend the information; the amendment charged
defendant in count 2 with a felony violation of “Sections 484(a), 490.5(a), and 666(b) of
the California Penal Code, PETTY THEFT OF RETAIL MERCHANDISE WITH
PRIOR CONVICTION.” The original information had charged felony petty theft as
well, but as a violation of sections 484, subd. (a), 488, and 666. The trial court granted
the motion to amend; defense counsel did not object to the amendment.
On December 3, 2012, at defendant’s first appearance in court, assistant public
defender Richard Van Zandt--who had represented defendant in the first trial--told the
court he had spoken with defendant and there was “not going to be a resolution” to the
case. The case was set for a jury trial. Shortly thereafter, Van Zandt was replaced by
another assistant public defender, his supervisor Sally Frederickson.
At a March 1, 2013, pretrial hearing to set an early disposition conference defense
counsel put on the record and defendant confirmed that he was “not interested” in the
original offer of eight years, four months. The People clarified that they were not
currently offering eight years four months, and that was not their current position as to
how the case should resolve.
On March 27, 2013, defendant moved for substitute counsel. Fredericksen and the
Public Defender, Tracie Olson, were present. Defendant first objected that Fredericksen
had supervised Van Zandt, and therefore Van Zandt’s inadequacy could be attributable to
her. In response, Fredericksen claimed Van Zandt was very experienced and she did not
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recall discussing the case with him. Defendant’s primary complaint was that
Fredericksen had been unable to get him a plea deal and he was willing to resolve the
case. He explained he had been offered an eight-year deal before the first trial, but he did
not take it because his attorney told him they “could beat the case.” Defendant said he
declined the offer without knowing that his attorney “wasn’t knowledgeable on the law.”
Defendant said he had understood he was going to be appointed a conflict of interest
attorney.
Fredericksen responded that defendant was “dissatisfied with my inability to get
an offer that I cannot get.” She explained she was limited in her ability to reduce
defendant’s sentence due to the charges, especially the prior serious felony, and the
violation of probation in a prior burglary case. The court agreed with her assessment,
telling defendant: “The fact that you may have been offered something way back when
in the beginning and your attorney advised you not to take it at the time, and you’re
saying, gee, that’s kind of unfair, and I think I might agree with you, but I don’t think it
has any legal consequence.” The court explained defense counsel could not control any
plea offers by the district attorney. The court denied defendant’s motion.
The People made a new offer of 12 years. Defense counsel advised defendant to
reject that offer; she proposed a counteroffer of 10 years four months. Defendant
eventually agreed to plead no contest to all the charges, and to admit the prior conviction
allegations and the violation of probation, with the understanding his sentence would be
between 10 years four months and 14 years 4 months. The plea form advised defendant
that his “maximum exposure” was 18 years and four months in state prison. Counsel
stipulated to a factual basis for the plea based on the court’s assertion it had conducted
the prior trial. The trial court sentenced defendant to an aggregate term of 14 years and
four months.
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DISCUSSION
I
Conflict of Interest
Defendant first contends the trial court erred in not granting his motion to replace
Fredericksen because she had a conflict of interest due to her loyalty to Van Zandt, an
attorney in the same office and under her supervision. He contends this conflict
adversely affected her performance because she failed to ask the court to order the People
to re-offer the original plea offer of an eight-year, four-month sentence.
“A criminal defendant is guaranteed the right to the assistance of counsel by the
Sixth Amendment to the United States Constitution and article I, section 15 of the
California Constitution. This constitutional right includes the correlative right to
representation free from any conflict of interest that undermines counsel’s loyalty to his
or her client. [Citations.] ‘It has long been held that under both Constitutions, a
defendant is deprived of his or her constitutional right to the assistance of counsel in
certain circumstances when, despite the physical presence of a defense attorney at trial,
that attorney labored under a conflict of interest that compromised his or her loyalty to
the defendant.’ [Citation.] ‘As a general proposition, such conflicts “embrace all
situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened
by his responsibilities to another client or a third person or his own interests.
[Citation.]” ’ [Citation.]” (People v. Doolin (2009) 45 Cal. 4th 390, 417 (Doolin).)
Claims of Sixth Amendment violations based on conflicts of interest are a
category of ineffective assistance of counsel claim that “generally require a defendant to
show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent
counsel's deficiencies, the result of the proceeding would have been different. [Citation.]
In the context of a conflict of interest claim, deficient performance is demonstrated by a
showing that defense counsel labored under an actual conflict of interest ‘that affected
counsel’s performance—as opposed to a mere theoretical division of loyalties.’
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[Citations.] ‘[I]nquiry into actual conflict [does not require] something separate and apart
from adverse effect.’ [Citation.] ‘An “actual conflict,” for Sixth Amendment purposes,
is a conflict of interest that adversely affects counsel’s performance.’ [Citation.]”
(Doolin, supra, 45 Cal.4th at pp. 417-418.)
The only articulated adverse effect of the alleged conflict on Fredericksen’s
performance is her failure to ask for an order requiring the People to re-offer the eight-
year, four-month plea deal. We next decide whether that failure was deficient
performance.
II
Right to Re-Offer of Previous Plea Offer
Defendant contends he is entitled to receive the plea offer that was made in 2010.
“He contends this is the only remedy that can properly redress the original deficient
performance of counsel in the first case, and this is the remedy he should have been
afforded after the case was remanded to the trial court after the first appeal.” Defendant
initially ignored both the discretionary nature of this remedy and the showing required to
obtain it. We requested and received supplemental briefing from the parties addressing
these issues.
A. The Law
“Defendants have a Sixth Amendment right to counsel, a right that extends to the
plea-bargaining process. [Citations.] During plea negotiations defendants are ‘entitled to
the effective assistance of competent counsel.’ [Citation.]” (Lafler v. Cooper (2012) 566
U.S. ___ [182 L. Ed. 2d 398, 406] (Lafler).) Ineffective assistance during plea
negotiations is not cured by a subsequent trial that is free from constitutional flaw. (Id. at
p. __ [182 L.Ed.2d at p. 411].)
In the context of a defendant rejecting a plea offer, to establish a claim of
ineffective counsel, a defendant must establish both that counsel's representation fell
below an objective standard of reasonableness and that it is reasonably probable that, “but
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for the ineffective advice of counsel there is a reasonable probability that the plea offer
would have been presented to the court (i.e., that the defendant would have accepted the
plea and the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and that the conviction or
sentence, or both, under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.” (Lafler, supra, 566 U.S. ___ [182
L.Ed.2d at p. 407]; see also Missouri v. Frye (2012) 566 U.S. ___ [182 L. Ed. 2d 379,
392]; People v. Alvernaz (1992) 2 Cal. 4th 924, 936-938 (Alvernaz).)
Once defendant has established that ineffective assistance of counsel caused him
to reject the plea offer, the trial court must fashion an appropriate remedy. The “remedy
must ‘neutralize the taint’ of a constitutional violation, [citation], while at the same time
not grant a windfall to the defendant or needlessly squander the considerable resources
the State properly invested in the criminal prosecution.” (Lafler, supra, 566 U.S. at p.
___ [182 L.Ed.2d at p. 411].) Where, as here, the “offer was for a guilty plea to a count
or counts less serious than the ones for which a defendant was convicted after trial, or if a
mandatory sentence confines a judge's sentencing discretion after trial . . . the proper
exercise of discretion to remedy the constitutional injury may be to require the
prosecution to reoffer the plea proposal. Once this has occurred, the judge can then
exercise discretion in deciding whether to vacate the conviction from trial and accept the
plea or leave the conviction undisturbed.” (Lafer, supra, 566 U.S. at p. ___ [182 L.Ed.2d
at p. 412], italics added.)
B. Analysis
Defendant meets the initial prerequisite for the remedy of renewal of the previous
plea offer. The record is clear that both defendant’s conviction and sentence were
harsher under the judgment and sentence actually imposed than they would have been
under the terms of the original plea offer. Under the original plea offer, defendant would
have pled only to the burglary charge, the prior strike allegation would have been
8
dismissed, and the trial court would have sentenced defendant to an aggregate term of
eight years four months. Instead, after the first trial and on remand after his plea to all
counts, the trial court found the strike prior true and sentenced him to an aggregate term
of 14 years and four months.
To have the opportunity to receive this remedy, a matter ultimately within the trial
court’s discretion, defendant first had to show ineffective assistance of counsel with
respect to his rejection of the plea offer in 2010. The question is whether counsel was
ineffective in failing to attempt that showing on remand. As we explain, we conclude she
was not.
Defendant contends counsel was ineffective (due to a conflict of interest) in failing
to make the requisite showing to obtain a second chance at the original plea offer. The
record, however, provides a different explanation for counsel’s failure to act. Counsel
may not have sought the remedy provided by Lafler simply because defendant had
indicated multiple times that he did not want it. At the outset, Van Zandt reported that
after speaking with defendant, there would be no resolution of the case. Later,
Fredericksen and defendant confirmed on the record that defendant was “not interested”
in the original plea offer.
Although defendant asserts that when he moved for substitute counsel, he argued
“that Fredericksen had not assisted him to obtain the original plea offer from 2010,” the
record does not support his assertion. Defendant was clearly upset that Fredericksen had
not been able to obtain a plea offer other than an offer of 13 years which he rejected--
“That’s not a deal.” He referred to the previous offer of eight years and indicated he was
willing to resolve the case, but he never said he wanted the previous offer. In fact, the
record suggests defendant was hoping for an even better offer. Later in the hearing,
defendant said he understood that the five-year prior and strike would result in a nine-
year sentence and seemed to indicate that was not acceptable. He suggested asking the
judge to strike his strike, and indicated that was how the eight-year offer was reached.
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He then calculated this new sentence as two years for the burglary and a year and a half
for the violation. “That’s all.” He made no mention of the five-year prior or the theft
charge; he appears to have been hoping for a three-year, six-month sentence. This is
consistent with his previous statement to probation that if “given the chance he would
have accepted a four year prison term.” (Italics added)
Defendant’s ambiguous statements at the hearing on his motion for substitute
counsel, particularly in light of his earlier express rejection of the prior plea deal, were
insufficient to signal to counsel that she should try to obtain the prior offer by seeking
relief under Lafler. Further, even assuming for the sake of argument that defendant’s
statements at the hearing constituted a request for the prior plea offer, the record does not
show why, at that point, counsel did not seek a Lafler remedy. If the record does not
show why counsel failed to act in the manner challenged, we must affirm the judgment
unless there simply could be no satisfactory explanation for counsel's conduct. (People v.
Maury (2003) 30 Cal. 4th 342, 389.) Defendant has not shown that counsel was ignorant
of or misunderstood the law.3 Indeed, by putting defendant’s lack of interest in the prior
offer on the record, counsel earlier had signaled that resurrecting the prior offer had been
considered and rejected. Thus there could be a satisfactory explanation for counsel’s
failure to act to request a Lafler remedy at the Marsden hearing.
Making the necessary showing for a Lafler remedy was, to say the least, an uphill
battle. While we previously found Van Zandt’s representation ineffective, we made no
3 We recognize that some of the court’s comments at the hearing could be construed as
counseling defendant contrary to Lafler. Defendant has not cited to--and we are unaware
of--any authority that a court has a duty to hold sua sponte an evidentiary hearing to
determine whether the People should be ordered to re-offer a previous plea offer. Here,
the ongoing event was a Marsden hearing (People v. Marsden (1970) 2 Cal. 3d 118); no
other motion was pending. No party was asking the court to do anything other than
determine whether Fredericksen could effectively represent defendant given the
allegation of conflict.
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such finding as to his advice to defendant about the plea. At the hearing, defendant stated
that he rejected the original plea offer of eight years and four months based on counsel’s
advice. This alone is insufficient. “[A] defendant's self-serving statement--after trial,
conviction, and sentence--that with competent advice he or she would 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.”
(Alvernaz, supra, 2 Cal.4th at p. 938.) Defendant offers no such objective evidence. As
we have described, his statements subsequent to the original plea offer undercut his claim
that he would have accepted the plea if advised properly. Further, the plea offer expired
at the preliminary hearing, so defendant would have had to accept it promptly to benefit.
Even if defendant cleared these hurdles, there is still the matter of the court’s
discretion to order renewal of the plea offer, and its discretion to accept the plea or leave
the conviction undisturbed. (Lafler, supra, 566 U.S. ___ [182 L.Ed.2d at pp. 411-412].)
Given the considerable discretion vested in the trial court, whether defendant would have
received the Lafler remedy is speculative. This speculative nature makes the failure to
act to obtain the remedy similar to the failure to move for a mistrial. It is “a rare case in
which the merits of a mistrial motion were so clear that counsel’s failure to make the
motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal. 3d
841, 854.) As explained, the merits of defendant’s Lafler motion were hardly clear.
Given the difficulty facing counsel in moving for a Lafler remedy, counsel may
have made a tactical decision that the best chance for a lower sentence was to have
defendant “plead to the sheet” and then try to convince the sentencing court to impose the
lower term. In the context of evaluating the effectiveness of counsel’s representation, we
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will not second guess counsel’s tactical decisions.4 (People v. Avena (1996) 13 Cal. 4th
394, 444.) “[E]ven ‘debatable trial tactics’ do not ‘constitute a deprivation of the
effective assistance of counsel.’ [Citation.]” (People v. Miller (1972) 7 Cal. 3d 562, 573.)
Defendant has failed to show ineffective assistance of counsel in the failure to
seek a Lafler remedy. Therefore, he has failed to show an actual conflict of interest
requiring the appointment of another attorney. The trial court did not err in denying
defendant’s motion for substitute counsel.
III
Other Claims of Ineffective Assistance of Counsel
Defendant raises two other claims of ineffective assistance of counsel. He
contends counsel was ineffective in failing to object to the amendment of the information,
changing count 2 from regular petty theft with a prior to shoplifting with a prior, although
there was no evidence that defendant stole retail merchandise, and in permitting him to
plead no contest to that offense. Second, he contends counsel was ineffective in failing to
advise defendant that the maximum sentence under the new plea offer was also the
maximum he could receive if he rejected the offer and went to trial.
There are two elements to an ineffective assistance claim: (1) deficient
performance, and (2) prejudice resulting from such deficient performance. (People v.
Weaver (2001) 26 Cal. 4th 876, 961.) “In considering a claim of ineffective assistance of
counsel, it is not necessary to 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 ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
4 We note, however, that the trial court had the opportunity to sentence defendant to 10
years, four months in prison under the plea agreement and declined to do so, instead
again imposing the 14-year, four-month sentence.
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followed.” ’ [Citations.] It is not sufficient to show the alleged errors may have had
some conceivable effect on the trial's outcome; the defendant must demonstrate a
‘reasonable probability’ that absent the errors the result would have been different.
[Citations.]” (People v. Mesa (2006) 144 Cal. App. 4th 1000, 1008.)
A. Failure to Object to Section 490.5 Amendment
On remand, the People moved to amend the information due to changes in the law
on petty theft with a prior. Although the petty theft charge (count 2) clearly addressed
defendant’s theft from a parked car, inexplicably, the amendment replaced the petty theft
section (§ 488) with the new shoplifting section (§ 490.5, subd. (a)) in count 2. There
was no evidence to support shoplifting. Nonetheless, defendant pled no contest to count
2 as “petty theft of retail merchandise with a prior conviction.”
It appears someone noticed the error before sentencing. Although the record is
silent as to the correction, defendant was sentenced on count 2 as “Penal Code Section
484(a), 488, 666, petty theft with a prior.” He received two years, doubled due to his
strike to four years, and then stayed pursuant to section 654. The abstract of judgment
and the probation report show the same correction, replacing section 490.5 with section
488.
Defendant contends he was prejudiced by counsel’s failure to object to the
amendment, because he is now “precluded from objecting.” In his reply brief, defendant
contends he is prejudiced because part of the record, the transcript of the plea, is incorrect
and its accuracy “may be extremely relevant if he ever faces future theft charges.” He
fails to explain how the error might be relevant, and does not contend his sentence would
have been different absent the error. Count 2 was originally charged as petty theft with a
prior, and that is the charge supported by the record and ultimately the charge reflected
by defendant’s record of conviction. Although sloppy, we do not see that the error in the
amendment and plea made any significant difference to defendant’s crimes of conviction
and sentence. Nor has defendant pointed us to any even arguably significant difference.
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We do not condone the carelessness in failing to correct the error in the amended
information on a timely basis, before the plea was taken. However, defendant has failed
to show prejudice as required to establish ineffective assistance of counsel.
B. Advisement on Plea
Defendant contends counsel misadvised him regarding his potential sentence when
he was deciding whether to accept the plea offer. He contends she failed to advise him
that the maximum sentence under the plea offer was the maximum he could receive if he
rejected the plea offer and went to trial. Further, the plea agreement shows he was
incorrectly advised that his maximum exposure was 18 years, four months.
Under double jeopardy principles, defendant could not have been subjected to a
sentence greater than that imposed in 2010; that is, 14 years and four months. (People v.
Henderson (1963) 60 Cal. 2d 482, 497; People v. Craig (1998) 66 Cal. App. 4th 1444,
1448.) He should have been so advised. Again, we consider whether defendant has
shown prejudice from this mistake. Where defendant claims counsel failed to advise him
properly as to a plea, to establish prejudice he must demonstrate that he would not have
entered the plea of guilty had he been given the proper advisement. (In re Moser (1993)
6 Cal. 4th 342, 352.)
In People v. McCary (1985) 166 Cal. App. 3d 1, the defendant was offered a plea
that dismissed a section 667 enhancement. We found counsel deficient in failing to
advise the defendant that section 667 could not be applied to him. (McCary, at p. 9.) We
found prejudice because the record suggested the plea offer was not very attractive to the
defendant as he moved to withdraw his plea while unaware of the invalidity of the
enhancement, and there were evidentiary problems with one count. (Id. at p. 10.) We
concluded the “promise to dismiss the enhancement charge was a substantial inducement
in defendant's decision to plead guilty. Since the enhancement charge was invalid to
begin with, the promise to dismiss it was of no value.” (Ibid., fn. omitted.)
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In People v. Johnson (1995) 36 Cal. App. 4th 1351 (Johnson), the defendant
accepted a plea offer of 20 years, but he had been misadvised that his maximum exposure
was 38 years, when it was only 27 years. Relying on McCary, the court found deficient
performance and prejudice. (Id. at pp. 1357-1358.) “Similarly, in the instant case, it can
be fairly concluded that the failure of defendant's counsel to correctly advise him of his
maximum potential sentence was a substantial inducement in his decision to plead nolo
contendere. By accepting the plea bargain, defendant believed he may have cut his
sentence almost by half, from a potential 38 years to 20, which under any circumstances
would be a powerful inducement to plead. Even so, as was true in McCary, defendant
had reservations about the wisdom of entering the plea bargain as was demonstrated by
his attempt to withdraw the plea on other grounds.” (Id. at p. 1358.) In addition, counsel
appointed to assist the defendant in withdrawing his plea also failed to notice the error,
and the defendant had filed a declaration stating he would have rejected the plea if he had
known his true maximum sentence. (Ibid.)
Here, by contrast, there is no evidence that defendant had reservations about the
wisdom of entering the plea bargain; he did not claim that trial counsel coerced him into
accepting a plea bargain, and he did not demonstrate unhappiness with the plea by
attempting to withdraw it before sentencing. (See Johnson, supra, 36 Cal.App.4th at p.
1358.) Defendant has not even claimed, much less pointed us to any evidence supporting
the claim, that the improper advice as to the maximum term played any part in his
decision to accept the plea offer. He merely asserts cursorily and without supportive
authority that counsel’s misadvisement rendered his plea “unknowing and unintelligent.”
Defendant has failed to show prejudice.
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DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
BUTZ , Acting P. J.
MAURO , J.
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