Opinion
H029803
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. JOSE INEZ MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED
Jose Inez Medina was found guilty of perjury (Pen. Code, § 118) by the court after waiving his jury trial, confrontation and other trial rights, and submitting the cause on the preliminary hearing transcript and certain other exhibits and reports. Defendant unsuccessfully moved to withdraw his waivers. At sentencing, he was granted probation.
On appeal, defendant argues that the court abused its discretion by denying his request for a continuance and his motion to withdraw his jury waiver; the court failed to inform him of the possibility of parole, thus rendering his waivers involuntary and unintelligent; and his trial counsel rendered ineffective assistance of counsel. We affirm.
STATEMENT OF FACTS
The Facts Underlying the Offense
From the probation report it appears that "[o]n September 7, 1999, the defendant applied for a duplicate California Drivers License.... The defendant signed under penalty of perjury he had not applied for a previous drivers license under a different name in the previous seven years." DMV records showed, however, that on February 2, 1993, defendant had applied for, and been issued, a drivers license under a different name and birth date. Defendant admitted to the probation officer that he had used his brothers name to obtain a drivers license in 1993.
The Facts Underlying the Motion to Vacate the Jury Waiver
Defendant was charged with one count of perjury under section 118, a felony. On July 9, 2004, defendant was assisted by a Spanish interpreter and appeared with counsel. The court indicated it had been informed defendant wished to "waive his rights to a court trial and a jury trial and submit the matter to the court based upon the transcript of the testimony previously given and/or police reports." Defense counsel confirmed that was so. The court informed defendant that the charge of perjury "carries a maximum punishment of four years in prison" and if he submitted the case to the court there was "a high probability the court will find you guilty of the charge." Defendant was further informed by the court that he had a right to a jury or court trial on the charge, a right to confront and cross-examine witnesses against him, a right to subpoena witnesses, and a right to testify or present a defense. Defendant answered affirmatively when asked if he (1) understood and gave up his right to have a court trial or a jury trial and other conditional rights; (2) agreed to allow the court to decide the case based upon documents submitted by the prosecution and no other evidence; (3) understood he would not be allowed to testify or present a defense, and (4) that the case would be decided upon what the prosecution presented. Asked if he was under the influence of drugs, medicine or alcohol, or if he had been threatened or forced make his waivers, defendant said "no." Defendant was also informed that if the court chose to impose a prison sentence, it could be two years, three years or four years, and defendant agreed to waive his right to have a hearing before a jury on any factors in aggravation that could be used to impose a four-year sentence.
Finally, defendant was informed that "if after review of the documents submitted by [the prosecutor] this court finds you guilty, these of course would be the consequences: I have to impose a mandatory minimum restitution fine of $200. You could be ordered to serve up to four years in state prison, or you could be placed on probation. Your probation could be for five years, and you could be ordered to serve up to 12 months in the county jail. [¶] In addition, you could no longer be on notice for firearms. And listen to this very carefully. If youre not a citizen of the United States, a conviction of this offense could result in your being deported, denial of readmission and denial of naturalization." Defendant acknowledged that he understood that. Defense counsel informed the court: "For the record, Mr. Medina is represented by an immigration attorney named William W. Stahl.... And I have been in contact, if not continually very regularly, with Mr. Stahl who has also been in contact with [the prosecutor] with regard to the immigration consequences regarding Mr. Medina. And those consequences are a significant part of the defendants decision to proceed in this matter."
The matter was submitted and on August 13, 2004, the court found defendant guilty of perjury, referred the matter to probation and set a sentencing date of November 19, 2004, at the defense request.
On February 24, 2005, defendant, through different counsel, filed a "Motion to Withdraw Plea" based on declarations from him, his wife, and a business associate.
In the declarations supporting the motion to withdraw, defendant and the others averred the following. Defendants understanding of English is limited. When he hired attorney Lempert to represent him on the perjury charge, he told Lempert he was especially concerned with the immigration consequences that charge could have on his ability to stay in the U.S. because he was convicted of a felony drug offense in 1993. Defendant gave Lempert the contact information for his immigration attorney, Mr. Stahl. Lempert told defendant "the worst that could happen would be that I would have to accept a misdemeanor conviction and have to do `weekend work "; that with a misdemeanor conviction, defendant would not be deported; that Lempert said he had worked out a plea bargain; defendant entered his plea "only because Mr. Lempert told me it was necessary to get the plea that would allow me to stay in the U.S."; that when he was found guilty on August 13, 2004, he was confused and did not understand what had happened. At no time did Mr. Lempert tell him there would be a problem getting a misdemeanor or that there was a chance he would be convicted of a felony if he accepted the plea; and "I would never have agreed to do what I did had I known Mr. Lempert had not prearranged something with the District Attorney and the judge."
On May 4, 2005, a hearing was held on defendants motion, at which attorney Lempert testified. According to Lempert, he met with defendant "a great number of times" — 25 to 30 at least — with regard to his case. In addition, they met socially a number of times. He did not discuss the legal technicalities of the case with defendant in Spanish. Lemperts dealings with defendant "almost always were in English, and I had no ... concern that he was not understanding me." However, Lemperts secretary, who is fluent in Spanish, was available to interpret if he had "any doubt about my client understanding what I am saying." She did assist him with defendant, from time to time.
Based on his evaluation of the evidence against defendant, Lempert was of the opinion that defendant "stood little or no chance [of] prevailing at a jury trial," and Lempert indicated to defendant that "the probabilities of prevailing were slim at a jury trial." However, defendants "preeminent concern" was with his immigration status. Defendant had an immigration lawyer, William Stahl, and Lempert spoke to Stahl "on numerous occasions regarding what we could do with regard to Mr. Medinas remaining in the United States. [¶] It was Mr. Stahls recommendation that Mr. Medina was in deep trouble and was almost certainly likely to be deported. [¶] The objective was to prolong that to the greatest extent that we could, and I discussed with Mr. Medina and with Mr. Stahl ways in which we could prolong the immigration process, and [we] came up with the idea ... that we could appeal a trial as opposed to pleading to the charges and that was what we decided to do." The prosecution had made an offer to dispose of the case, and Lempert had discussed the offer at length with defendant, "as well as the consequences of accepting that offer as I had been told by Mr. Stahl it would affect his immigration status." The decision was made not to accept the prosecutors offer but to "enter into some other process that would prolong the cases as much as possible, and that ... meant not pleading but trying the case."
With respect to "technicalities of a Bunnell [v. Superior Court (1975) 13 Cal.3d 592] plea, I indicated to him that if we entered into this process, that there would be no jury. There would be no witnesses. That the case would be submitted to a judge for decision based exclusively on the police reports, and he would be found guilty [of] [t]he charges that were submitted to the Court for decision."
Lempert attempted to negotiate a disposition with the prosecutor that would minimize the negative immigration consequences to defendant. To that end, and because he was not an expert on immigration law, he "act[ed] more as an intermediary between [the prosecutor] and Mr. Stahl both of whom professed expertise in immigration law." Mr. Stahl told Lempert that given defendants history, "were he convicted of a violation of Section 118, perjury as a felony, he would be deported almost certainly [but] if we could somehow delay the finalization of the conviction of the perjury essentially having that held in abeyance," the inevitable could be at least postponed. Asked if he ever told defendant that the worst thing that was going to happen him was that he would be convicted of a misdemeanor, Lempert replied, "There isnt a chance in the world that I told him that."
The matter was continued to June 1, 2005, for defense counsel to present further witnesses to rebut Mr. Lemperts testimony. On that day, defense counsel was asked if she wished to present additional witnesses or evidence, and she indicated she did not. The court denied the motion, ruling that no evidence was presented to show "a colorable claim of ineffective assistance of counsel or fraud or misrepresentation on behalf of the court or Mr. Lempert that caused Mr. Medina to waive his right to have a jury trial."
On July 14, 2005, defendant hired new counsel. On September 6, 2005, newly retained counsel filed a new "Motion to Withdraw Plea of Guilty (Pen. Code § 1018) Or in the Alternative, Request for Reconsideration of Defendants Previous Motion." The motion alleged that good cause for the withdrawal of the plea of guilty existed in that he had been denied effective assistance of counsel. In a new declaration, defendant repudiated and moved to strike the previously filed motion to withdraw his plea. He now averred that he "entered in a Bunnell plea pursuant to my attorney, Mr. Lemperts advice, believing I was entering into a negotiated plea bargain that would place me in a better position than I was in. [¶] I gave up all my constitutional rights and my rights under Blakely [v. Washington (2004) 542 U.S. 296], only to find out later that I received no benefit whatsoever from this and in fact, was placed in a worse position than before my plea. [¶] I would not have ... waived my rights pursuant to Blakely had the proper advice been given to me. [¶] ... I believed that ... Mr. Lempert entered into a proper plea negotiation with the court and the prosecutor and I would receive the benefit of that negotiated plea. I never promoted, encouraged, participated in or expected anything from this matter, other than that which I would be legally entitled to."
On October 12, 2005, new counsel filed a motion to withdraw defendants 1993 guilty pleas to multiple drug offenses. The denial of this motion is the subject of a separate pending appeal, H029870.
In the memorandum of points and authorities, new counsel argued that the record did not affirmatively demonstrate the plea was voluntary and intelligent; did not reflect that defendant was adequately advised of the charge against him by the court, or of the direct consequences of his plea, apparently by his counsel; and moved to strike "defendants previously submitted document entitled `Motion to Withdraw Plea filed on February 24, 2005," because it did not "express defendant Medinas belief or defenses in this action and do not reflect Mr. Medinas understanding of the justice system." Despite the repudiation of defendants prior declaration, the memorandum of points and authorities attached to the renewed motion to withdraw the plea selectively refers to factual assertions that appear only in the prior declaration, such as his belief that he was pleading guilty to a misdemeanor.
On November 3, 2005, a further hearing on defendants motion to withdraw his plea/ jury waiver was held at which the probation officer and defendant testified. Mr. Mattson, the probation officer, testified that he is county-certified as bilingual and interviewed defendant primarily in Spanish. He "found it necessary to ask the questions several times to gather information. [Defendant] had trouble or he appeared to have trouble answering the questions" and comprehending them, even in Spanish. In his opinion, defendants lack of comprehension appeared honest. Officer Mattson knew defendant had resided in the United States for 25 years; however, he was not aware that defendant had previously represented himself to be bilingual, and had completed a course in English as a second language at Mission College in Santa Clara County, and courses in mathematics, filings and general office skills at San Jose City College.
Defendant testified that as a child his schooling was often interrupted so that he could work. He finally quit school for good at the age of 17. In school, he learned a few words of English. He came to the United States when he was 19 to look for work. He attended school for four or five months and learned a bit of English. He eventually found work in restaurants and spoke mainly Spanish. He admitted taking English as a second language at Mission College and taking classes in mathematics and general filing at San Jose City College. After working seven years at one restaurant and four years at another, defendant and his wife were able to purchase the second restaurant at which they were both working. He went to prison in 1993 or 1994 and took classes there in Spanish to earn his G.E.D. However, in prison everybody mainly spoke in English.
When he was charged with perjury in 2000, he found an attorney, with whom he spoke for about 15 or 20 minutes. By the time he entered his Bunnell plea in 2004, he had spent "[n]ot very much" time with his attorney. His attorney did "not really" talk to him about what his plan was to help defendant, and so defendant did "[n]ot exactly" have an understanding of what he expected from his attorney. When he went to court on July 9, 2004, he "expected that the attorney [had] negotiated something somewhat like a misdemeanor." Early on, the attorney had spoken to "some people with the ... D.M.V." who told him that "it wasnt much." When defendant was later charged with perjury, the attorney "was able to achieve ... a way to get it thrown away." All along, defendant told the attorney he "would like a smaller charge. I am willing to accept work in the community, work the amount of time that they want; any time. He never seemed to have very much time for me. We hardly ever spoke. ... But all along I was trusting 100 percent in the attorney. When the judge asked me if I was waving [sic] my rights, I really didnt understand what he meant. But I was looking at Mr. Lempert, and Mr. Lempert made a motion with his head to answer `Yes. "He did not understand "the exact meaning" of what the interpreter said in Spanish. He left court "with a feeling we were going to achieve a lesser charge, a misdemeanor." He believed he was going to get a benefit from waiving his rights but he did not receive one. He would have wanted a jury trial in this case, and would not have waived his rights, if he had known that it would put him in a worse position. He waived his rights because he expected a misdemeanor. Once, on one or two court days before his final appearance, Mr. Lempert told defendant "he was going to be able to achieve" a misdemeanor. In any event, "if he didnt tell me, thats what I understood." He acknowledged that the court never told him he was going to get a misdemeanor.
Apparently, the charges were dismissed and then reinstated.
He did not know what he was doing when he waived his right to a jury trial. He now knew "more or less" what the difference is between a felony and a misdemeanor, but back in July in 2004 he didnt think he knew. But he did not think, back then, that he could go to prison for a misdemeanor. He was not listening when the judge said he could go to prison for this case; he was waiting for his attorney to send him signals. He recalled that the court warned him of the potential immigration consequences if the court found him guilty, and he recalled saying that he understood those potential consequences, and understanding those consequences he waived his right to a jury trial because he thought the attorney had made a legal deal to waive his rights in exchange for a misdemeanor.
Defendant pleaded guilty to reckless driving in 1984, but he did not remember if he entered his plea in English or Spanish. He recalled going to court about some tickets in 1992, but did not recall if the ticket included driving on a suspended license or whether he communicated with the court in Spanish or English. In 1993, defendant was convicted of drug sales to an undercover police officer. Defendant did not recall if he negotiated those sales in Spanish or English.
Documentary evidence was introduced to show that defendant applied for licenses in his own name and that of his brother. Defendant denied knowing the significance of the word "perjury." He wasnt aware, did not know, and did not think about whether it was wrong to use anothers name and date of birth to obtain a license; he also didnt think it was so important.
The I.N.S. has been trying to deport defendant since 1993 when he was convicted of selling cocaine five times to an undercover police officer, but the deportation hearings have been continuing for 12 years.
DISCUSSION
Denial of Continuance
Defendant contends the trial court abused its discretion and violated his due process rights when it denied defense counsels request to continue the December 20, 2005 hearing so that she could bring in Stahl, the immigration attorney, to rebut the testimony of defense counsel Lempert. Defendant claims that Stahls testimony would have "directly contradicted" Lemperts testimony, and that defendant was prejudiced because the court "substantially relied on Lemperts false testimony to deny" defendants motion to withdraw his jury trial waiver. Acknowledging that defendants motion to continue came 17 months after defendants Bunnell waivers, he nevertheless asserts it was an abuse of discretion for the court to "suddenly concern itself with time issues." He requests a reversal and "a reasonable time following the remittitur to call Attorney Stahl as a witness." We disagree.
We review the trial courts denial of a continuance to secure the attendance of a witness for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1036.) "A continuance may be granted `upon a showing of good cause and `only for that period of time shown to be necessary by the evidence.... (Pen. Code, § 1050, subds. (e) & (i).)" (People v. Shane (2004) 115 Cal.App.4th 196, 203.) "To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven." (People v. Howard (1992) 1 Cal.4th 1132, 1171.)
The trial court did not abuse its discretion in ruling that defendant did not meet his burden. First, defense counsel made no showing of due diligence. Attorney Lempert testified on May 4, 2005. The matter was continued to June 1, 2005, for predecessor counsel to present further witnesses to rebut Mr. Lemperts testimony. On that day, predecessor counsel declined to present any rebuttal witnesses, the most obvious one being Mr. Stahl, and the court denied defendants motion to withdraw his Bunnell waivers. Sentencing was set for July 29, 2005.
Defendant hired new counsel on July 14, 2005. According to the probation officer, "[t]he attorney requested a continuance to provide this officer the defendants translated statement and additional information to be reviewed by this officer prior to the completion of the presentence report." The matter was continued to September 2, 2005. Both the probation officer and defense counsel requested a continuance to September 16, 2005. However, on September 6, 2005, defense counsel filed her "motion to withdraw the plea of guilty" and the matter was continued to October 20, 2005. Then, on October 18, 2005, defense counsel filed a motion to continue because of a dental emergency. The matter was continued to November 3, 2005.
On that day, the hearing on defense counsels renewed motion commenced, and she called two witnesses, Mr. Mattson and defendant. Defense counsel did not indicate that she intended to call, or had subpoenaed, Mr. Stahl. At the end of the day, when the prosecutor had not finished cross-examining the defendant, the hearing was continued to December 20, 2005, to accommodate defense counsels trial schedule. However, on December 16, 2005, she filed a motion to continue the hearing because "a crucial witness, attorney William Stahl" was unavailable on December 20, 2005, because of "other Immigration court commitments." The motion did not state when Mr. Stahl would be available, nor did it indicate that Mr. Stahl had been subpoenaed to appear, only that "[i]t is imperative that Mr. Stahl testify in court regarding his meetings and discussions with Mr. Lempert regarding this case...." On December 20, 2005, defense counsel again offered no explanation of her efforts, if any, to secure Mr. Stahls attendance at either the November 3 or the December 20 hearings, and did not offer the court any date when he could appear. Under these circumstances, due diligence was not shown; nor was it shown that the testimony could be obtained within a reasonable time.
In addition, it was not demonstrated that Stahls testimony was, in fact, material. Defense counsels offer of proof consisted of the following: "Mr. Lempert made the statements regarding the fact they were going to just enter this Bunnell plea so they could put it on appeal, the time factor. [¶] . . . [¶] Mr. Stahl is going to testify that that was not the conversation at all. That he had advised Mr. Lempert that any plea, anything short of a victory at trial, anything that had moral turpitude would be devastating to Mr. Medina. He did not advise him to enter the Bunnell plea, or that any slow plea taken was going to result in a crime of moral turpitude at all."
This offer of proof, to the extent it is intelligible, does not contradict Mr. Lemperts testimony that, based on what Stahl had told him, he advised defendant that if he were convicted of perjury, "he was almost certain to be deported." Lempert also testified that he put Mr. Stahl and the prosecutor in touch with each other and that based on his evaluation of the evidence against defendant, "[defendant] stood little or no chance of prevailing at trial" and he so advised defendant. Given that acquittal was not possible and deportation was virtually certain, he and Mr. Stahl looked for ways "to prolong [deportation proceedings] to the greatest extent that we could." He therefore advised defendant that the Bunnell procedure would accomplish that goal.
Finally, it was not demonstrated that the facts could not otherwise be proven. Mr. Lempert testified that he assumed, since Stahl was defendants immigration lawyer, that Stahl explained the immigration issues raised by defendants case to him. Defendant was available to testify and did testify on November 3 and December 20. He could have, but did not, testify about Stahls advice to him. In short, defendant has not met his burden of demonstrating an abuse of discretion by the trial court.
Denial of Motion to Withdraw Jury Trial Waiver
Next, defendant argues that the trial court abused its discretion in denying his motion to withdraw his jury trial waiver. Analogizing to the "good cause" standard for withdrawing a guilty plea under Penal Code section 1018, defendant argues that his testimony demonstrated the requisite good cause. We disagree. The trial court had before it not only defendants testimony but also that of Mr. Lempert, its personal knowledge of defendants waivers and its own memory of the hearing at which the court had accepted those waivers, and knowledge of defendants prior convictions and conduct in the DMV matter, all of which the court was entitled to consider on the question of defendants credibility. As an appellate court, we are not at liberty to second guess the trial courts credibility determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The trial court clearly disbelieved defendant. No abuse of discretion is shown.
Voluntariness of Waiver
Next, defendant claims his jury waiver was involuntary because the trial court did not advise him that he if he were to be sentenced to prison, he would be placed on parole. In this case, defendant was advised that he could be sentenced to prison, or he could be placed on probation. He was not told that if he was sentenced to prison, he would be subject to mandatory parole; nor was he told that if he was placed on probation, and he violated probation, he could then be sent to prison and be subject to mandatory parole. Defendant was placed on probation.
The trial court must advise the defendant of the direct consequences of his Bunnell plea. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605.) To prevail upon a claim of misadvisement of a direct consequence of a plea, however, the defendant must show that he would not have pleaded guilty but would instead have chosen a trial if he had been properly advised. (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023; In re Alvernaz (1992) 2 Cal.4th 924, 936.) Defendant concedes that he did not testify below that if the court had advised him of the possibility of parole, he would not have agreed to the Bunnell procedure. Indeed, the record suggests just the opposite: that he would have entered into any procedure that prolonged deportation proceedings, and that the possibility of parole was not an important consideration. Defendant also concedes that it is "impossible" for him to establish that he is prejudiced by the parole requirement, because he is currently on probation and "as long as [he] does not violate probation, and a state prison sentence is not imposed, he will never actually serve a parole term." Defendants concessions raise the question whether mandatory parole was ever a direct consequence of his Bunnell submission. We need not resolve that question, however, because even assuming mandatory parole was such a consequence, defendant has not demonstrated the requisite prejudice. No error is shown.
Ineffective Assistance of Counsel
Finally, defendant contends he was denied effective assistance of counsel because his attorney never spent very much time with him, didnt explain what his plan was to help defendant, didnt get him the misdemeanor disposition he expected and in fact he received no benefit whatsoever from waiving his rights.
"To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsels performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different." (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) " `Tactical errors are generally not deemed reversible; and counsels decision making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation...." [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate "a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." " (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
Here, defendant has not shown either deficient performance or prejudice. Defendant has not shown that counsel misjudged the case in thinking that defendant stood little or no chance of prevailing at a jury trial. Defense counsel testified that he attempted to negotiate a favorable disposition for defendant and made the prosecutor aware of defendants immigration problems. In fact, the prosecutor did make an offer, which defendant did not accept. Defense counsel was not ineffective because he was unable to persuade the prosecutor to dismiss the perjury charge and accept defendants counter offer of a misdemeanor disposition and weekend work or community service. The record demonstrates that defense counsel was aware of the facts and circumstances of defendants case and had a rational tactical reason for proposing a Bunnell submission. Finally, far from being prejudiced, defense counsels proposal succeeded in delaying and prolonging deportation proceedings related to his perjury conviction. Ineffective assistance of counsel has not been demonstrated.
CONCLUSION
The trial court did not abuse its discretion in denying defendants request for a continuance or his motion to vacate his jury trial waiver. Defendant was not prejudiced by the trial courts failure to advise him of parole. Defense counsel did not render ineffective assistance.
DISPOSITION
The judgment is affirmed.
We concur:
Mihara, Acting P.J.
Duffy, J.