Opinion
A158364
08-21-2020
THE PEOPLE, Plaintiff and Respondent, v. GERARDO MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 467802)
Gerardo Martinez appeals from a judgment entered after the court denied his motion to withdraw his no contest plea to multiple sex offenses. He contends the court erred in concluding that he was not prejudiced by the court's earlier failure to advise him accurately of the parole consequences of his plea. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A third amended information charged Martinez with two counts of sexual intercourse or sodomy with a child under the age of 10 (Pen. Code, § 288.7, subd. (a)), engaging in oral copulation or sexual penetration with a child under the age of 10 (§ 288.7, subd. (b)), rape of a child under the age of 14 (§ 269, subd. (a)(1)), oral copulation with a child under the age of 14 (§ 269, subd. (a)(4)), and two counts of lewd and lascivious acts with a child under the age of 14 (§ 288, subd. (a)).
All statutory references hereafter are to the Penal Code.
According to the preliminary hearing transcript, the Alameda County Sheriff investigated the alleged sexual assaults of Martinez's victims, Jane Doe One and Jane Doe Two. Jane Doe Two disclosed that Martinez (her stepfather) had perpetrated two "separate acts of sexual abuse" upon her. She provided details, including Martinez's instruction to remove her pants and underwear and his insertion of his penis into her anus. Martinez told Jane Doe Two not to tell anyone.
A. Martinez's No Contest Plea
On May 21, 2019, during jury voir dire, defense counsel notified the trial court that Martinez wanted to plead no contest in exchange for a 10-year state prison term that the prosecutor had previously offered. Martinez explained to the court that while not admitting guilt, the "nature of the crime that I have been accused of is too overbearing" and he did not want to put his "life in the hands of 12 people who [might] not be fair."
The court confirmed Martinez's understanding that, if convicted by a jury of the charges, the punishment would be "extraordinary"—"a life sentence." The court further confirmed that the plea offer was a 10-year term with Martinez serving 85 percent, and Martinez would waive any "back time." Martinez stated that "the possibility of me being home in 8 and a half years, 10 years, versus to a jury that might be unfair and impartial, it's overwhelming. So with that being said, I will have the paper, Your Honor." (Italics added.)
The court advised Martinez of the rights he was giving up by entering a no contest plea, confirmed that no one was threatening Martinez or forcing him to plead, and established that it was Martinez's own choice to enter the plea. The parties stipulated that the preliminary hearing testimony set forth a factual basis for the plea. The prosecutor stated other terms of the plea agreement, including sex offender registration under section 290, provision of a DNA sample pursuant to section 296, a 10-year stay-away order pursuant to section 136.1, restitution, and court fees and fines.
Martinez thereafter entered a plea of no contest to two counts of committing lewd and lascivious acts on a child under the age of 14.
The court did not advise Martinez that he would be on parole after his release from prison. The written plea form that Martinez signed, however, specified that Martinez would be subject to a parole term of up to four years. At no time during the plea hearing did Martinez or his defense attorney mention the duration of parole.
B. Motion to Withdraw Plea
On June 19, 2019, Martinez filed a motion asking to withdraw his plea. He claimed that he had learned he would be subject to a maximum parole term of 10 years, he had been misadvised as to the period of parole, and he would not have entered his plea if he had been properly advised.
Martinez submitted a declaration in support of his motion. He averred that before he entered his no contest plea, he discussed the issue of parole with his family because he considered parole to be an extension of the period of incarceration. On May 21, 2019, after his attorney advised him to resolve the case by entering a plea, she informed him that his parole term could be up to five years; he expressed reluctance in regard to such a term but decided to accept the offer. He also relied on the statement in the plea form that he signed, which stated that he might be subject to a parole term of up to four years. After he entered his plea, he learned he was subject to a maximum parole term of 10 years, and he would not have pled had he known of the true parole term because to him it was akin to serving a 20-year sentence.
Martinez also submitted a declaration from his defense attorney, who stated that Martinez had expressed concern "about the limits that would be imposed on him as a sex offender and parolee." When counsel spoke with Martinez on May 20, 2019, she initially told him he would be subject to a three-year parole term. Later that day, the prosecutor told counsel it would be a five-year parole term. The plea form indicated Martinez's parole would last up to four years. On the day Martinez entered his no contest plea, counsel reviewed the waiver form with him and reiterated that his maximum term of parole would be up to five years, and he agreed to take the plea offer. On May 24, 2019 - three days after he entered his plea—counsel told Martinez "that his maximum parole period could be up to 10 years," and Martinez said that he would not have pled if he had he known this.
The People opposed Martinez's motion to withdraw his plea. The prosecutor submitted a declaration stating that defense counsel telephoned on May 20, 2019, and asked about the length of time Martinez would be required to register as a sex offender and the length of his parole term, and if Martinez could have until the following day to consider the plea offer. Other than that, the prosecutor never discussed Martinez's potential parole term "with his attorney or otherwise." On May 29, 2019, the prosecutor received an email from defense counsel, informing her and the court that Martinez wanted to withdraw his plea because he would be subject to a maximum parole term of up to 10 years.
Respondent tells us that the "prosecutor subsequently contacted the Department of Corrections and learned that appellant was subject to a parole term of five years, six months." To be more precise, under the department's early discharge policy (and depending upon the conviction date), Martinez could be eligible for a parole discharge review after serving a minimum of five years, six months of his 10-year parole term. There is no guarantee he would receive a discharge from parole before the end of the 10-year period prescribed by the statute. (§ 3000, subd. (b)(2).)
The motion was heard on July 12, 2019. Focusing on whether Martinez was prejudiced by the failure to advise him of the parole consequences of his plea, the court concluded there was no reasonable probability Martinez would not have pled had he been properly advised. Citing People v. DeLeon (2017) 3 Cal.5th 640, the court observed that statutory changes to the parole system had transferred authority over the parole violation process from the state prison board to the superior court, and a parole violation no longer resulted automatically in a return to prison but only the possibility of local jail time. The court stated: "So . . . I don't think that Mr.—that the declaration of Mr. Martinez' perceptions has the weight that the Court or that counsel is inviting this Court to give it, that parole is this enormous boogeyman that's out there to get everybody. It was. It's not any more. So I don't think that—the Court finds that it's not—that parole—this is a—in essence, this is a buyer's remorse on Mr. Martinez'[s] part. I find myself very much in the same position as the court in [People v. Avila (1994) 24 Cal.App.4th 1455]. Avila, the guy got a life sentence. He got a lifetime parole. He didn't—but he was told it was three years. Here, Mr. Martinez was told three to four to five years, when in fact it's ten. . . . This case, as so many of these types of cases are, involve huge emotional human costs. The allegations themselves are of things that cost the victims enormously. There are also allegations that have to in the heart of a person who has a heart cost them upon reflection and there's all the other family members. These are integral family situations. It's very difficult for any person to admit to a crime like this. The Court in observing Mr. Martinez enter his plea, understands that it's hard to plead to these charges but—and I think that's—I believe that's why he's here making this motion. He doesn't want to admit to his family members, who are all present today, that this happened. He doesn't want to be the person who has to say, yeah, okay this happened. But when confronted with the reality that he was looking at . . . 130 years . . . to life, it wasn't just 130 years at half time or even 80 percent, it was several life sentences, and then on those life sentences it would be lifetime parole. This in the Court's opinion and evaluation of the moving papers, the declarations, and the Court's recollection of the demeanor and the parties throughout the trial, finds this to be entirely apropos case of buyer's remorse. It's not—I am relying entirely on Avila, because I find that is exactly on point to this kind of case. I am going to deny the motion to withdraw the plea as a result of the Court's decision in this matter." (Italics added.) The order was entered that day.
At a hearing on August 30, 2019, the court denied probation, sentenced Martinez to state prison for a 10-year term pursuant to the negotiated disposition, ordered that his term of parole be no more than ten years, and entered judgment.
The trial court thereafter granted Martinez's request for a certificate of probable cause, and Martinez filed a notice of appeal.
II. DISCUSSION
When a defendant enters a no contest plea, he must be advised of the direct consequences of his conviction, including any mandatory parole. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; In re Moser (1993) 6 Cal.4th 342, 352.) If the court fails to so advise the defendant, and the defendant raises the issue by the time of sentencing, the defendant is entitled to withdraw the plea if the failure to advise was prejudicial. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, overruled on another point in People v. Villalobos (2012) 54 Cal.4th 177, 183; People v. Avila (1994) 24 Cal.App.4th 1455, 1459-1460 (Avila); see § 1018.) Prejudice is shown where there is a reasonable probability that the defendant would not have entered the plea had a proper advisement been given. (See Avila, supra, at p. 1460.)
Here, the parties do not dispute that the court failed to advise Martinez of the true parole consequences of his plea and that Martinez raised the issue before sentencing. The sole issue before us is one of prejudice: specifically, whether the record supports the trial court's conclusion that Martinez failed to show a reasonable probability that he would have foregone the plea deal if he had been properly advised of the 10-year parole term. We review the denial of a motion to withdraw a plea for an abuse of discretion. (People v. Brotherton (1966) 239 Cal.App.2d 195, 200.)
The record here amply supports the trial court's conclusion. When Martinez entered his plea, he told the court that he was motivated by his fear of putting his "life in the hands of 12 people who [might] not be fair," and he explicitly weighed being released from prison in just eight and a half years against the possibility that the jury "might be unfair and impartial." At no time did he or his attorney raise the issue of the parole consequences. Although he later claimed in his declaration supporting his motion to withdraw his plea that he had been concerned about his parole term being five years, he also averred that he relied on the plea form that stated he was subject to a four-year parole term, yet he never inquired about this discrepancy. Moreover, the deal Martinez received was exceedingly favorable. If he had proceeded to trial and been convicted on the charged counts, he could have been sentenced to over 130 years in prison (and, even if he was released from prison during his lifetime, he would have faced a lifetime parole). By entering the no contest plea, he gained a release from prison in just eight and a half years—about one-fifteenth of the time he faced if he were convicted after trial. As Martinez expressed at the hearing, "the possibility of [him] being home in 8 and a half years, 10 years" compared to what a jury might do was "overwhelming." (Italics added.)
Given Martinez's avowed fear of the jury, the fact that the "nature" of the charged crimes was "overbearing," and the dramatically shorter prison term he obtained from the plea, it is reasonable to conclude that learning his parole term would be up to ten years rather than five years would not have dissuaded him from seizing the plea deal. And while there was evidence that Martinez was concerned about the duration of parole and he claimed he would not have pled if he knew the true parole period, it was not incumbent on the trial judge—who explicitly relied on his observations of Martinez when he entered his plea—to accept as true Martinez's new avowals uttered when there was no longer a jury being chosen to decide his fate. Under the totality of the circumstances, the evidence was sufficient for the court to believe that the longer parole term would not have been as significant as Martinez was claiming, there was no reasonable probability Martinez would have passed up the deal if he had known the parole term was 10 years, and his desire to withdraw his plea was a matter of "buyer's remorse."
Instructive in this regard is Avila, supra, 24 Cal.App.4th at p. 1455, on which the trial court relied. There, the defendant pled guilty to second degree murder pursuant to a negotiated plea that included a sentence of 15 years to life (plus one year for a knife use enhancement). (Id. at p. 1457.) At the time of the plea, the court incorrectly advised the defendant that after completing his prison term he would be on parole for up to three years. (Id. at p. 1458.) Before sentencing, the defendant moved to withdraw his plea on the ground he had been misadvised as to the parole period, which was in fact for life, and this error constituted a violation of his plea bargain. (Ibid.) The trial court denied the motion, and the appellate court affirmed, ruling that the defendant failed to demonstrate prejudice arising from the misadvisement. (Id. at pp. 1459-1460.) By finding that the "defendant had negotiated a 'good plea bargain' and avoided a possible 30-year sentence resulting from a first-degree murder conviction[,]" the trial court impliedly found that the "defendant would have pleaded guilty even if he had been correctly advised regarding the parole term he faced after prison," and this conclusion was supported by the evidence that he obtained a term of 16 years to life by entering his plea and, if he had not pled, he could have been sentenced to state prison for 31 years to life. (Id. at p. 1460.)
As a separate issue, the court in Avila further concluded that the erroneous advisement of the parole consequence did not violate a term of the plea bargain, because there was no evidence a three-year maximum parole period was a subject of negotiation (or even discussion) during the plea-negotiation process, or that the prosecutor made any promises or inducements relevant to the challenged element, and the parole period was a statutorily mandated consequence and could not have been the subject of negotiations. (Avila, supra, 24 Cal.App.4th at p. 1461.) For the same reasons, the parole consequence here was not a term of Martinez's plea agreement. --------
Martinez's arguments to the contrary are unavailing. In large part, he insists the evidence in his declaration and his attorney's declaration demonstrated a reasonable probability that he would not have entered his plea. He argues, for example, that the fact there was any discussion with his attorney about the parole term before he accepted the plea offer shows that the length of parole was significant to him. He notes his defense attorney's representation that this was "probably one of the first times" in her career that parole "really was an issue," and for Martinez it was a significant point and "a big deal" that held up his decision whether to accept the plea, particularly when he learned the parole term would be five years. Martinez points out that he immediately moved to withdraw his plea once he learned his statutory parole term was actually 10 years, and he urges that, unlike the defendant in Avila, he produced evidence of prejudice.
The fact that Martinez produced evidence on the issue of prejudice, however, does not entitle him to a reversal of the trial court's decision. The role of this court is not to reweigh the evidence presented to the trial court, but to determine if the court's ruling finds adequate support in the record. We conclude it does. And while the evidence Martinez presented, if believed, might have suggested that the length of his parole was a factor in his decision, it does not compel the conclusion that he would have ultimately passed up the plea deal if he had been told of a 10-year parole term.
Martinez argues that the court substituted its own view of the significance of parole for Martinez's view, thus disregarding Martinez's assertion that he would not have pled guilty if he had been advised of the true parole term, and perhaps overlooked the fact that for Martinez, as a sex offender, parole would have required "GPS monitoring" and certain statutory restrictions. He adds that whether or not Martinez was correct in his assessment of the burden of parole as an extension of incarceration, it was his perception that counts.
We view the record differently. It is not that the judge substituted his view of parole for Martinez's view and evaluated whether the judge would have pled no contest; rather, the court evaluated the credibility of Martinez's claim based on the reality of parole under the totality of the circumstances Martinez faced. If, in fact, Martinez had been properly advised—and would have learned not just that the parole period could be as long as 10 years but also the true nature of parole—Martinez would have proceeded to enter his no contest plea in light of the short sentence and other benefits he received from entering his plea.
Martinez next contends it makes no difference that he received a favorable deal by entering his plea, arguing that Avila "does not stand for the proposition that a defendant may not withdraw his plea if he negotiated a 'good deal.' " But no one is suggesting that a defendant can never withdraw his plea if he received a good deal. The point in Avila is simply the common sense proposition, applicable here, that a defendant who received a very favorable disposition by entering a plea would have likely accepted that plea even upon learning that the duration of parole was longer than he originally thought.
Martinez similarly contends it is unimportant that the length of the parole period was not raised by Martinez or his attorney at the plea hearing. He claims the absence of any such discussion with the prosecutor or the court was in part due to the court's failure to raise the issue, and it was unnecessary to discuss the parole term because it was set by statute rather than negotiation. However, while speaking in court about an issue may not be a prerequisite for showing the issue was important to the defendant, the fact remains that nothing at the hearing in this case suggests the duration of his parole was a deal-breaker for Martinez.
The cases on which Martinez relies are inapposite. In In re Carabes (1983) 144 Cal.App.3d 927 (Carabes), the trial court failed to advise the defendant of the parole consequences of his conviction before the defendant pled. (Id. at p. 929.) The court of appeal held that this omission was prejudicial, because the fact that the defendant sought to withdraw his plea promptly after learning the parole consequences gave rise to an inference that he would not have pled guilty if he had known about them. (Id. at p. 933.) Carabes, however, is distinguishable from the matter at hand. The defendant in Carabes was not told about his parole consequences at all; here, Martinez knew full well that he faced as much as five years of parole, since his attorney so advised him before he entered his plea. In Carabes, there was no indication that the sentence to which the defendant pled was favorable; here, the sentence Martinez obtained by his plea was extremely favorable. And in Carabes there was no explicit finding by the trial court that the defendant's request to withdraw his plea was merely a matter of buyer's remorse; here, there was. (See also People v. Dillard (2017) 8 Cal.App.5th 657, 667 [timeliness of motion to withdraw plea is not relevant to the prejudice inquiry].)
Martinez's reliance on People v. Zaidi (2007) 147 Cal.App.4th 1470 is also misplaced. There, the defendant pled guilty to an offense for which sex offender registration was discretionary. (Id. at p. 1476.) The probation forms and sentence implied that the registration obligation would last only as long as the defendant was on probation. (Id. at p. 1490.) Defense counsel objected to the registration requirement at sentencing, and the defendant later sought to withdraw his plea based on the court's failure to advise him that sex offender registration was actually a lifetime requirement. (Id. at pp. 1477, 1479-1480.) The trial court denied his request. The court of appeal reversed, finding prejudice based on the misleading information he received before entering his plea, the absence of any evidence that he understood he would be required to register for life, his prompt request to withdraw his plea upon discovering the truth, and his declaration that he would not have pled if he had been properly advised. (Id. at pp. 1490-1491.) Here, however, the circumstances are markedly different. Unlike the defendant in Zaidi, Martinez told the trial court he was entering his plea because the "nature" of the accusations was "overbearing" and his fear of an unfair jury was "overwhelming," and he obtained an enormous benefit in a sentence of effectively just eight and one-half years rather than more than 130.
Finally, Martinez presents us with the following quotation: "[T]he withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice would be subserved by permitting the defendant to plead not guilty instead; and it has been held that the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of plea from guilty to not guilty." (Quoting People v. Ramirez (2006) 141 Cal.App.4th 1501, 1507, italics added.) But this quotation does not help Martinez. Here, there was sufficient evidence that the failure to advise Martinez of the true parole term did not "cause" him to plead guilty, and Martinez has not established that "he has any defense at all." (Id. at p. 1507.)
Martinez fails to establish error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.