Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA255319 David S. Wesley, Judge
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Billy J. Spencer appeals from the judgment entered after he pleaded guilty to two counts of second degree robbery and one count of receiving stolen property. Spencer was sentenced to a prison term of 20 years. He contends his plea was induced by a misrepresentation of a fundamental nature, and seeks conditional reversal of the judgment. The People concede the point. We agree, and conditionally reverse the judgment to allow Spencer to withdraw his plea. Concurrently with his appeal, we consider and deny Spencer’s petition for a writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
Because Spencer pleaded guilty, we glean the facts from the transcript of the grand jury proceedings, of which we take judicial notice. (Evid. Code, §§ 452, 459.)
Miroslaw Kohut and Irene Kohut owned Little Switzerland, a jewelry store, located in the City of Glendale. On April 2, 2005, Irene received telephone calls from two different men asking what time the store closed. She told the callers that the store closed between 5:30 and 6:00 p.m. At approximately 4:40 p.m., Spencer arrived at the shop and rang the bell. Miroslaw was reluctant to let him enter because it was near closing, but Spencer insisted that he was a former customer and knew Irene. Miroslaw let him in and left the door unlocked. Irene unlocked the jewelry case and showed Spencer their selection of earrings. Spencer appeared unable to find an item he wanted to purchase, however, and Miroslaw had a feeling something was “not right.” Accordingly, he locked the safe and hid the key.
For ease of reference, we hereinafter refer to the Kohuts by their first names.
While Spencer was looking at the jewelry, codefendant Dexter Cole entered the shop and asked if Miroslaw repaired watches. Miroslaw stated he did not, and walked back to his repair room. Cole then handed a gun to Spencer. Spencer followed Miroslaw to the back room and hit him over the head with the gun, causing Miroslaw to bleed profusely. Spencer pinned Miroslaw to the floor and hit and kicked him. Cole threw Irene to the floor behind the showcase and began beating her. He then dragged her down the back corridor to the safe, while she begged him to stop. Spencer handed the gun back to Cole, and Cole hit Irene in the head with it several times. Cole gave the gun back to Spencer and continued hitting and kicking Irene, causing her to lose consciousness. When she came to, Cole demanded that she open the safe. When she was unable to, he threw her to the ground again, taped her legs, eyes, and mouth, and handcuffed her.
Meanwhile, Spencer choked Miroslaw and told him to get the key to the safe. Miroslaw said he could not recall where it was, because he had been hit too many times. Spencer threatened that Miroslaw should give him the key, “or else.” While in the front portion of the store looking for the key, Miroslaw managed to trigger the silent alarm by leaning against the alarm button. Spencer handcuffed and taped Miroslaw, and placed jewelry from the display case in a bag.
Spencer received two telephone calls on his cellular telephone. After the second call, he told Cole, “ ‘It’s over[.]... [L]et’s go.’ ” The men fled through the back door, leaving the bag of jewelry behind. They were apprehended by police after a brief foot pursuit. A Glock handgun, which had been reported stolen prior to the robbery, was recovered near the robbery scene.
2. Procedure.
Pursuant to a negotiated disposition, Spencer pleaded guilty to counts 1 and 2, the second degree robberies of Irene and Miroslaw respectively (Pen. Code, § 211), and count 8, receiving stolen property (§ 496, subd. (a)). He also admitted personally using a firearm during commission of the robberies (§ 12022.53, subd. (b)). The trial court sentenced Spencer to a term of 20 years in prison. It imposed a restitution fine, a suspended parole restitution fine, a crime prevention fee, and a court security assessment. Spencer appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Withdrawal of plea.
a. Additional facts.
Subsequent to the grand jury indictment, on October 3, 2008 the trial court noted that the parties and the court had been discussing the possibility of plea agreements. The court averred that it would not negotiate further and queried whether the defendants wished to plead. Spencer, along with one of his co-defendants, responded affirmatively. The following colloquy transpired:
“[Defense counsel]: Mr. Spencer[] also wanted me to mention if the court would grant a probable cause
“The Court: I indicated I would, to allow him to raise issues with respect to the grand jury indictment, and others, that occurred before this plea.
“[Defense counsel]: And also the issue regarding the certificate of probable cause, that was one of his motions, he called it a McLaughlin
“The Court: I indicated I would issue the certificate of probable cause.
“[Co-defendant Cole’s counsel]: Is the court indicating he’s going to give him a certificate of probable cause?
“The Court: I had indicated I will give him a certificate of probable cause, with respect to the grand jury denial of his [section] 995, whatever the issue is. I think that they should have the right to appeal issues in their case, if they think there was a wrong ruling.” [¶]... [¶]
Although the trial court referenced a section 995 motion, it does not appear from the record before us that Spencer ever made a motion to set aside the indictment pursuant to section 995.
“[Defense counsel]: Mr. Spencer wants it specific that the court is including his McLaughlin motion in that.
“The Court: I haven’t read his McLaughlin motion, but I have indicated I will allow them to take their issues up on appeal. I have indicated that to counsel, if you will draft it, I’ll allow them to take their issues up on appeal, other than any issues with respect to the sentencing, because this is an agreed upon sentence.”
The “McLaughlin” issue discussed by the court and parties refers to Spencer’s contention that he was not brought before a magistrate for arraignment within 48 hours after his arrest. (See County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56-57 (McLaughlin); People v. Williams (2010) 49 Cal.4th 405, 446.)
Spencer thereafter was advised of, and waived, his rights to trial, confrontation, and against self-incrimination, and pleaded guilty to the two robberies and receiving stolen property.
On November 20, 2008, the trial court granted Spencer’s self-representation request.
The sentencing hearing was held on January 15, 2009. During those proceedings, Spencer inquired about a variety of motions he had filed with the court, and about his appeal. When discussing two probation reports that had been prepared, Spencer pointed out that one of the reports stated he was not a gang member. Spencer explained, “the only reason that I was raising that issue... is because during the course of the grand jury proceedings, I was labeled as a domestic terrorist which constituted substantial and significant prejudice in violation of my liberty interest vested in the grand jury proceedings.” Spencer opined that the allegation he was a gang member was prejudicial and was a “key factor” in the grand jury’s decision, because the grand jury was “misled into believing that this was a gang case.” The court responded that the issue had “absolutely nothing to do with the sentencing in this case” and that Spencer could “raise that on your appeal.”
The court then pronounced sentence as described ante. The trial court explained that an appellate lawyer would be appointed for Spencer and would review the various motions and petitions Spencer had filed, or attempted to file, in the trial court. Spencer explained that he had raised the issues in the trial court because he did not want them to be “moot” or “waived.” The court stated it understood that Spencer wanted to “keep all your issues. You’ve done that.” The court reiterated, “at the time of the plea agreement, I specifically said I would allow an appeal on the issue of any grand jury issues that wanted to be raised.”
b. Discussion.
Spencer contends, and the People concede, that he must be given the opportunity to withdraw his plea because the court incorrectly promised him that he could appeal the purported delay in bringing him before a magistrate after arrest, as well as issues related to the conduct of the grand jury proceedings. We agree.
“ ‘Where a defendant’s plea is “induced by misrepresentations of a fundamental nature” such as a bargain which is beyond the power of the trial court, a judgment based upon the plea must be reversed. [Citations.]’ [Citation.]” (People v. Hollins (1993) 15 Cal.App.4th 567, 574; People v. DeVaughn (1977) 18 Cal.3d 889, 896.) It has repeatedly been held that when a plea is induced by an inaccurate promise that an issue is preserved for appeal, the judgment must be reversed to allow the defendant the opportunity to withdraw his or her plea. (See People v. Hollins, supra, at pp. 573-574; People v. Coleman (1977) 72 Cal.App.3d 287, 292; People v. DeVaughn, supra, at p. 896; People v. Truman (1992) 6 Cal.App.4th 1816, 1820-1821.)
Here, the record shows that, before Spencer agreed to plead, and as a condition of that plea, the trial court promised he could appeal the alleged defects in the grand jury proceedings and the purported unlawful delay in his appearance before a magistrate. The trial court agreed to issue a certificate of probable cause to facilitate appellate review on these issues, that is, “issues with respect to the grand jury indictment, and others, that occurred before this plea, ” and “with respect to the grand jury denial of his 995, whatever the issue is.” When Spencer later reiterated his view that he had been prejudiced by improper allegations he was a gang member during the grand jury proceedings, the trial court confirmed, “at the time of the plea agreement, I specifically said I would allow an appeal on the issue of any grand jury issues that wanted to be raised.” The record thus establishes that part of the plea bargain was the promise Spencer could obtain appellate review of perceived irregularities in the grand jury proceedings and purported delay in bringing him before a magistrate.
Contrary to the trial court’s representations, Spencer’s claims cannot be raised on appeal. In general, when a defendant wishes to challenge irregularities in grand jury proceedings, or contends he or she has been indicted without reasonable or probable cause, the remedy is a section 995 motion to set aside the indictment. (See, e.g., People v. Meals (1975) 49 Cal.App.3d 702, 706.) If a section 995 motion is not made, “the defendant is precluded from afterwards taking the objections mentioned in Section 995.” (§ 996; People v. Warburton (1970) 7 Cal.App.3d 815, 822.)
Even more fundamentally, a defendant’s guilty plea precludes his appeal on the question of the legality of his commitment. (In re Wells (1967) 67 Cal.2d 873, 875; People v. Warburton, supra, 7 Cal.App.3d at p. 822.) “Other than search and seizure issues which are specifically made reviewable [by statute], all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea.” (People v. Kaanehe (1977) 19 Cal.3d 1, 9.) “Notwithstanding the question of the legality of their arrests and the consequences which flowed therefrom, each defendant’s guilty plea operated to remove such issues from consideration as a plea of guilty admits all matters essential to the conviction. [Citation.] Issues cognizable on an appeal following a guilty plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ resulting in the plea. [Citations.]” (People v. DeVaughn, supra, 18 Cal.3d at pp. 895-896.) Because a guilty plea constitutes an admission of every element of the offense, it “follows that a guilty plea must logically be construed as an admission of the existence of probable cause.” (People v. Waters (1975) 52 Cal.App.3d 323, 332; People v. Warburton, supra, at p. 821.) Thus, a defendant who pleads guilty waives his right to question the legality of his commitment. (In re Wells, supra, 67 Cal.2d at p. 875; see also People v. Laudermilk (1967) 67 Cal.2d 272, 281-282; People v. Padfield (1982) 136 Cal.App.3d 218, 224; People v. Warburton, supra, at p. 822; People v. Meals, supra, 49 Cal.App.3d at p. 706.) “It is a reasonable assumption that a defendant will not plead guilty or nolo contendere unless he is satisfied that the People do have sufficient evidence at least to hold him for trial. No reason has been suggested why a defendant should be permitted to enter a plea of guilty or nolo contendere, and thereafter seek appellate review of whether the evidence before the grand jury indicated probable cause to hold him to answer.” (People v. Warburton, supra, at p. 822.)
The issuance of a certificate of probable cause pursuant to section 1237.5 does not “operate to expand the grounds upon which an appeal may be taken as that section relates only to the ‘procedure in perfecting an appeal from a judgment based on a plea of guilty.’ [Citations.]” (People v. DeVaughn, supra, 18 Cal.3d at p. 896; People v. Kaanehe, supra, 19 Cal.3d at p. 9.) “The plea bargain cannot be used to change or to ignore statutory requirements which the trial court has no power to change or to ignore.” (People v. Meals, supra, 49 Cal.App.3d at p. 708.)
People v. Truman, supra, 6 Cal.App.4th 1816, is instructive. There, before the defendant pleaded guilty, the prosecutor and trial court reassured him that “ ‘any appeal rights he has regarding the denial of his [section] 995 motion will be preserved....’ ” (Id. at p. 1820.) The court indicated that the defendant had “ ‘a statutory right to appeal from the denial of the 995’ ” and it would issue a certificate of probable cause to allow him to litigate the issue on appeal. (Ibid.) The defendant then entered his plea. On appeal, Truman contended he should be allowed to withdraw his plea because it “was induced by the false promise of appellate review of the denial of his” section 995 motion. (People v. Truman, supra, at p. 1820.) Truman agreed. It explained: “Appellant’s guilty plea precludes him from seeking review of the denial of his motion pursuant to Penal Code section 995, notwithstanding the trial court’s promise to the contrary.” (Id. at pp. 1820-1821.) One of the trial court’s express “ ‘promises or representations’ ” inducing the guilty plea was the “ ‘court’s own promise to issue a certificate of probable cause’ ” to protect the defendant’s appeal rights. (Id. at p. 1821.) Under these circumstances, the defendant was entitled to withdraw his plea if he wished. (Ibid.)
Other cases are in accord. In People v. Hollins, supra, 15 Cal.App.4th 567, the defendant moved before trial to compel the disclosure of a confidential police surveillance location. His motion, characterized by the court as a section 995 motion, was denied. During subsequent plea negotiations, the trial court agreed to issue a certificate of probable cause in order to preserve the defendant’s purported right to raise the issue on appeal. (Id. at pp. 571-572.) When advising the defendant of his rights and taking the plea, the court reiterated that the right to appeal the issue was preserved; it later clarified that the issue could be addressed via a writ. (Id. at p. 572.) The trial court’s advisements and assurance it would provide a certificate of probable cause erroneously led the defendant to believe appellate review was preserved in one form or another. (Id. at p. 573.) Because the defendant’s plea was induced by an erroneous promise that the issue was preserved for appeal, Hollins concluded the defendant had to be given the opportunity to withdraw his plea. (Id. at pp. 574-575; see also People v. Coleman, supra, 72 Cal.App.3d at pp. 292-293 [where trial court erroneously told defendant his plea bargain included the right to appeal denial of his motion for disclosure of the identity of an informant, the plea was induced by a material mistake in which the court participated, requiring reversal to allow the defendant to withdraw his plea].)
Here, a component of the plea bargain was that Spencer would retain the ability to appeal the questions of the timing of his arraignment before the magistrate and purported irregularities in the grand jury proceedings. These issues were not appealable in light of Spencer’s guilty plea and his failure to raise them via a section 995 motion, and the trial court lacked the ability to make them appealable. “ ‘The promise was illusory and therefore was an improper inducement which voids the plea. [Citation.].... [[D]efendant] should be given an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires. [Citations.]’ [Citation.]” (People v. Hollins, supra, 15 Cal.App.4that p. 575; People v. Coleman, supra, 72 Cal.App.3d at p. 293.) Accordingly, because Spencer’s plea was induced by a misrepresentation of a fundamental nature, the judgment must be reversed to allow him the opportunity to withdraw his plea. (People v. DeVaughn, supra, 18 Cal.3d at p. 896.)
2. Petition for a writ of habeas corpus.
Acting in propria persona, Spencer filed a petition for a writ of habeas corpus, which we consider concurrently with his appeal. (See In re Barnett (2003) 31 Cal.4th 466, 478, fn. 9.) Spencer alleges: (1) he was not arraigned within 48 hours of his arrest, as mandated by McLaughlin, supra, 500 U.S. at pp. 56-57; (2) the presentation of evidence and/or argument at the grand jury proceedings that the crimes were gang-related was prejudicial and violated his “ ‘liberty interest’ ”; (3) the prosecutor committed misconduct during the grand jury proceedings; (4) the trial court committed “judicial misconduct” by failing to “report” the prosecutor’s alleged misconduct; and (5) his attorneys were ineffective in a variety of respects. As we have explained ante, Spencer’s guilty plea and failure to challenge any alleged delay below precludes consideration of the first four issues at this juncture, either by appeal or writ. (See In re Wells, supra, 67 Cal.2d at p. 875; People v. Kaanehe, supra, 19 Cal.3d at p. 9; In re Razutis (1950) 35 Cal.2d 532, 534-535; People v. Hollins, supra, 15 Cal.App.4th at p. 571; People v. Meals, supra, 49 Cal.App.3d at p. 706; In re Grayson (1966) 242 Cal.App.2d 110, 113; § 996; see also People v Lewis (2008) 43 Cal.4th 415, 445 [McLaughlin claim forfeited if not raised prior to appeal].)
Nevertheless, because Spencer asserts his three trial counsels were ineffective for a variety of reasons, including their failure to file motions to dismiss or preserve his appeal rights, we consider his claims in the context of ineffective assistance. “A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Carter (2003) 30 Cal.4th 1166, 1211.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.]’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Lopez, supra, at p. 966.) “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]” (People v. Carter, supra, at p. 1211.)
a. Delay in arraignment before magistrate.
Spencer has attached to his petition documents showing he was arrested at approximately 4:55 p.m. on Saturday, April 2, 2005, booked at approximately 6:20 p.m. that same date, and arraigned by a magistrate on Tuesday, April 5, 2005, at 8:30 a.m. Spencer contends that because more than 48 hours elapsed between his arrest and his arraignment, a “McLaughlin violation” occurred.
Persons in custody must be taken before a magistrate and arraigned without unnecessary delay. (Cal. Const., art. I, § 14; McLaughlin, supra, 500 U.S. at pp. 56-57; see also § 825 [arraignment ordinarily should occur within 48 hours, excluding Sundays and holidays], § 859 [appearance before a magistrate should occur without unreasonable delay after charge by written complaint]; People v. Williams (2010) 49 Cal.4th 405, 446.)
In Gerstein v. Pugh (1975) 420 U.S. 103, the United States Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. (Id. at p. 125; McLaughlin, supra, 500 U.S. at p. 47.) Subsequently, in McLaughlin, the court articulated a more specific principle, that is, that probable cause determinations taking place within 48 hours of arrest generally comply with the promptness requirement. (McLaughlin, supra, at p. 56.) When a determination takes place after 48 hours, the People bear the burden to demonstrate the existence of a bona fide emergency or other extraordinary circumstances justifying the delay. (Id. at p. 57.) Intervening weekends do not qualify as an extraordinary circumstance. (Ibid.)
Here, we assume that, given the circumstances, Spencer’s arrest was warrantless. Spencer was brought before the magistrate approximately 15-1/2 hours past the 48-hour time frame. The record contains no information regarding what transpired during the period in which Spencer was in custody. Because Spencer never challenged the delay, the People had no opportunity to justify it by pointing to extraordinary circumstances or a bona fide emergency. On these facts, we cannot conclude defense counsel performed inadequately. The record on appeal sheds no light on why counsel failed to challenge the brief delay. There could have been a satisfactory explanation: for example, counsel may have known that the People would have been able to justify the delay.
In any event, Spencer has not established prejudice. Even if the People had been unable to justify the 15-hour delay, dismissal would not have been the proper remedy. Spencer points to no authority holding that dismissal is required as the remedy for a McLaughlin violation, and we are aware of none. Neither McLaughlin nor the court’s subsequent ruling in Powell v. Nevada (1994) 511 U.S. 79 specified the proper remedy when the 48-hour time frame is exceeded without justification. The court did not hold that the appropriate remedy for a violation of the 48-hour requirement was dismissal of the case. To the contrary, the court observed that it did not follow from the mere existence of a McLaughlin violation that the defendant “must ‘be set free, ’... or gain other relief.” (Powell, at p. 84; see also Gerstein v. Pugh, supra, 420 U.S. at p. 119.) Instead, the court suggested that harmless error analysis applied. (Powell, supra, at p. 84[noting that on remand, the Nevada court could determine the appropriate remedy and could consider whether admission of statements Powell gave during the detention was harmless].) Spencer fails to explain what, if any, prejudice he suffered as a result of the delay. There is no showing he made incriminating statements during the delay and no suggestion the delay hampered his ability to defend the case or prejudiced his right to a fair trial. (See, e.g., State v. Hershberger (2000) 27 Kan.App.2d 485, 491 [5 P.3d 1004, 1007-1009]; Powell v. State (1997) 113 Nev. 41, 45-47 [930 P.2d 1123, 1126].) Thus, had counsel raised issue and proven the delay was unjustified, such a showing would not have resulted in dismissal or any other advantage for Spencer. Because Spencer has failed to establish either that counsel’s performance was unreasonable or that he has suffered prejudice, he has failed to establish ineffective assistance.
b. The criminal street gang allegation.
Spencer’s next contentions pertain to the fact a section 186.22 gang allegation was alleged during the grand jury proceedings. Spencer points to a portion of the grand jury proceedings in which the prosecutor stated that codefendant Cole was a member of the “Five-One Nothing But Trouble” street gang. The prosecutor stated during argument that the gang’s primary activities included murder, assault with deadly weapons, robbery, and witness intimidation. Further, she argued that according to the People’s gang expert, the gang committed robberies in order to obtain money to purchase drugs for sale. The gang’s crimes were committed throughout Los Angeles.
Essentially, Spencer complains that the mere fact a gang enhancement was charged and attempted to be proved by the People was improper and unduly prejudicial. Viewing the contention through the lens of an ineffective assistance claim, it lacks merit. Assuming arguendo that the gang allegation was unsupported by the evidence and should have been omitted, defense counsel was not ineffective for failing to move to set aside the indictment on that ground. Evidence received by a grand jury must be admissible at trial. (People v. Backus (1979) 23 Cal.3d 360, 387; § 939.6, subd. (b).) An indictment based solely on incompetent evidence is unauthorized, and must be set aside on a section 995 motion. (People v. Backus, supra, at p. 387.) Likewise, when “the extent of incompetent and irrelevant evidence before the grand jury is such that, under the instructions and advice given by the prosecutor, it is unreasonable to expect that the grand jury could limit its consideration to the admissible, relevant evidence, ” a defendant’s due process rights have been violated and the indictment must be set aside. (People v. Backus, supra, at p. 393.) On the other hand, the fact that evidence received at the grand jury proceedings would have been excluded at trial does not require setting aside the indictment if sufficient competent evidence to establish probable cause was received by the grand jury. (§ 939.6, subd. (b); People v. Backus, supra, at p. 387.) Probable cause means a state of facts that would lead a person of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the accused’s guilt. (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818; Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 490.) Probable cause may exist although there may be some room for doubt, and the evidence required in order to find probable cause need not be sufficient to support a conviction. (Garcia v. Superior Court, supra, at p. 818; D’Amato v. Superior Court (2008) 167 Cal.App.4th 861, 880.)
Here, an abundance of admissible, competent evidence was presented to prove the crimes. Therefore, had counsel brought a section 995 motion to set aside the indictment or otherwise challenged the gang enhancement, any such motion would have been unsuccessful. Defense counsel is not required to make futile motions or to indulge in idle acts in order to appear competent. (People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24; People v. Gutierrez (2009) 45 Cal.4th 789, 804-805 [“defense counsel’s decision not to file a motion he believes will be futile” does not substantially impair the defendant’s right to effective assistance of counsel]; People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
c. Prosecutorial and judicial misconduct.
Spencer next asserts that the prosecutor committed misconduct by “put[ting] forth false documentary evidence, mislead[ing] the court, [and] fail[ing] to comply with the court[’]s order to put forth evidence i[n] support of false statements of fact.” Spencer fails to explain the factual basis for these conclusory allegations. His contentions are too vague and nonspecific to demonstrate either that counsel’s performance was subpar, or that he suffered prejudice as a result. (See People v. Kraft (2000) 23 Cal.4th 978, 1050.) For the same reasons, the assertion that the trial judge failed in his purported duty to report the prosecutor’s supposed ethical violations does not provide a basis for relief. Even assuming for purposes of argument that the trial court failed in a duty to report ethical violations by the prosecutor––a contention we do not accept––Spencer does not explain how that fact would entitle him to the relief he seeks.
d. Other allegations of ineffective assistance.
Spencer additionally contends his three defense counsels provided ineffective assistance in a variety of ways. He faults his first attorney for failing to challenge the indictment on unspecified grounds, and for failing to file a “ ‘discovery motion, ’ ” a “ ‘suppression motion’ ” pursuant to section 1538.5, and a motion to dismiss pursuant to section 995. His second attorney, he contends, failed to “independently investigate the facts of the case, and refused to file necessary motions to preserve [his] rights for appeal.” Further, she “relied solely on the prosecution[’]s mischaracterization of the charged offenses” as gang crimes. His third counsel failed to visit him at the jail, “nor did he ever challenge any aspects of the indictment.” The third attorney advised Spencer that he had worked out an agreement with the prosecutor by which Spencer would plead in exchange for 21 years in prison. However, “[s]aid counsel never explained exactly what I had to plead to.”
As is readily apparent, Spencer’s conclusory and nonspecific allegations fail to establish a meritorious ineffective assistance claim. Spencer fails to set forth the factual or legal basis for the motions he claims should have been brought by all three attorneys. He has failed to establish that any of the motions he suggests would have been successful, and does not explain how counsel’s conduct resulted in prejudice to him. Spencer seems to be operating under the assumption that competent counsel must file a panoply of motions, meritorious or not, in order to be deemed effective. He is incorrect. “ ‘The Sixth Amendment does not require counsel “ ‘to waste the court’s time with futile or frivolous motions’ ” [citation].’ ” (People v. Gutierrez, supra, 45 Cal.4th at p. 805.) Likewise, even if Spencer’s assertions are credited, the fact that counsel failed to visit him in jail is insufficient to establish ineffective assistance. “[I]t is not uncommon for a deputy public defender in the County of Los Angeles to be so busy that he cannot visit the defendant in jail. This does not mean that there are inadequate contacts between the defendant and counsel.” (People v. Williamson (1985) 172 Cal.App.3d 737, 745-746.) The frequency of meetings is not a reliable indicator of incompetence. (People v. Vera (2004) 122 Cal.App.4th 970, 980.) “[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence. Defendant was required to show more.” (People v. Silva (1988) 45 Cal.3d 604, 622.) Spencer has failed to do so. Further, Spencer fails to provide any factual basis for his conclusory assertion that counsel failed to adequately investigate, nor does he explain how the purported failure to investigate prejudiced him, especially given the overwhelming evidence of guilt. Given that we are remanding the matter to allow Spencer to withdraw his plea if he so chooses, any inadequacy in counsel’s explanation of the proposed plea is moot.
In sum, the record before us does not disclose that Spencer’s three trial counsels lacked a tactical basis for representing him in the manner now challenged. Counsels’ performance was not of the sort for which there could be no satisfactory explanation, nor has Spencer shown that the attorneys were asked for explanations of their actions and failed to provide them. In short, Spencer’s vague and conclusory allegations fail to establish ineffective assistance. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
DISPOSITION
The judgment is reversed with directions to permit Spencer to withdraw his plea within 30 days of the finality of this opinion. If no such motion is brought by appellant, the trial court is directed to reinstate the original judgment and sentence.
The petition for writ of habeas corpus is denied.
We concur: CROSKEY, Acting P. J., KITCHING, J.