California Cases October 08, 2019: People v. Ortega

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Tulare Super. Ct. No. VCF296864)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

Page 2

Appellant/defendant Juan Ortega was arrested in March 2014, after a girl, J.J, reported to her parents and law enforcement officers that he had sexually molested her numerous times. Defendant was a friend of the girl's parents and acted as an afterschool babysitter for the girl and her younger brother. The girl was 11 years old when she spoke to the police. During a postarrest interview, defendant admitted he touched the victim's breast and groin area and other parts of her body and showed her pornographic videos.

Defendant was initially charged in a felony complaint with six counts of committing lewd and lascivious acts on a child under the age of 14 years in violation of Penal Code section 288, subdivision (a), with a maximum possible exposure of 18 years. Each count alleged defendant committed a specific sexual act on the victim. In particular, count 3 alleged the defendant committed the lewd act of "mouth to vagina," but defendant was not separately charged with oral copulation. The initial complaint alleged the offenses occurred over a 15-month period that ended two days before the victim talked to the police. The complaint did not allege the victim's date of birth or her precise age at the time of each offense.

The People filed an amended complaint four months after the initial complaint. It again alleged the six violations of section 288, subdivision (a), and added a new charge of oral copulation of a child under the age of 10 years in violation of section 288.7, subdivision (b), that carried a term of 15 years to life. Defendant's case was repeatedly continued as the defense sought to obtain full discovery from the People and obtain funding to hire experts in support of a motion to suppress defendant's postarrest statements.

Page 3

Nearly three years after he was arrested, defendant filed a motion to reinstate an alleged plea offer of 10 years that the People purportedly made based on the charges in the initial complaint, and before the amended complaint with the life term was filed. Defendant's motion was based on the alleged ineffective assistance of his first attorney, who purportedly told him that the People had extended a 10-year plea offer but advised him not to accept it because he believed defendant would get a lesser term. Defendant argued his attorney was prejudicially ineffective because he should have realized defendant faced a potential life term based on the allegations in initial complaint that he committed an act of oral copulation on a child who could have been younger than 10 years old. Defendant argued the court should order the People to reinstate the initial complaint and allow defendant to plead to the lesser violations of section 288, subdivision (a).

The superior court held an evidentiary hearing and denied defendant's motion to reinstate, based on the testimony of defendant's first attorney that a plea offer was never made in the case. The court also found that while the initial complaint alleged a violation of section 288, subdivision (a) based on an act of oral copulation, counsel was not ineffective for failing to have defendant immediately plead to the charges because counsel had not obtained full discovery prior to the filing of the amended complaint, and there was some question during the early stages of the case about the victim's age at the time of the offenses. Defendant subsequently pleaded no contest to oral copulation of a child under the age of 10 years in violation of section 288.7, subdivision (b) and other charges, and he was sentenced to 15 years to life.

On appeal, defendant contends the court improperly denied his motion to reinstate the People's alleged plea offer, and that his first attorney, Richard Alvarez, was prejudicially ineffective for telling him not to accept the offer and failing to advise him to immediately plead to the charges in the initial complaint before the People could file the more serious oral copulation offense.

Page 4

We will review the lengthy procedural history of this case and find that the court properly denied defendant's motion to reinstate the alleged plea offer, there was no evidence a plea offer was ever made in the case, and counsel was not prejudicially ineffective for failing to have defendant immediately plead to the charges in the initial complaint.

Detective Jobe of the Dinuba Police Department received a dispatch at 11:30 p.m. on Saturday, March 15, 2014, to respond to a local hospital. By the time he arrived, it was the early morning hours of Sunday, March 16, 2014.

Detective Jobe met with J.J., a minor female, and her parents. J.J.'s father said he routinely asked his children if anyone did anything inappropriate to them. J.J.'s father said that on Saturday, March 15, 2014, his daughter reported for the first time that defendant had been molesting her. J.J.'s parents said defendant was their close friend and babysitter.

At the preliminary hearing, it was stipulated that J.J. was born in January 2003. Detective Jobe testified defendant was born August 7, 1978.

Page 5

J.J.s' statements about the charged offenses

As a result of that first meeting, Detective Jobe arranged for J.J. to give a forensic interview on March 17, 2014. Jobe observed the interview and testified at the preliminary hearing about J.J.'s statements.

J.J. said that on Friday, March 14, 2014, she went to defendant's home in Dinuba after school. They went to Fresno and played airsoft games with friends, and returned to defendant's house between 1:30 a.m. and 2:00 a.m. J.J. said she fell asleep in his bed. Defendant normally slept on the couch. J.J. woke up and defendant was lying against her body in bed. Defendant placed his hands under her pajamas and underwear, touched her vagina, and rubbed it with his hands.

J.J. described prior incidents when defendant touched her. J.J. said all the molestations occurred at defendant's home in Dinuba. She had difficulty recalling the specific details of each particular incident. J.J. said these incidents happened "the past few months during the school year" and "over the past year," but she could not recall the exact dates. J.J. never told anyone until her parents asked some questions.

J.J. said there were several different incidents where defendant would lay behind her, rub his penis on and between her buttocks, and move around; he did not penetrate her anus. J.J. said defendant also rubbed his penis against her vagina, "skin to skin."

J.J. said defendant put his mouth on her vagina. It happened "several times throughout the timeframe" that he molested her. J.J. said she tried to get away from him, but he pulled her back and said, " 'Just let me.' "

J.J. said defendant also licked and pinched her breasts. It hurt when he pinched her, and she told him to stop. Defendant replied, " 'Just let me.' " J.J. tried to push his hands away, but he continued to touch her.

J.J. said there was an incident when defendant was sitting in front of his computer and asked her to "suck" his penis. J.J. refused, but she saw naked people on the computer screen. There were other times where defendant asked her to watch movies like that.

Page 6

J.J. said she told defendant to stop touching her when these things happened, but defendant said no and continued to do so.

J.J. was examined by a nurse, who did not find any physical evidence on her body.

Defendant's arrest and postarrest interview

On March 18, 2017, Detective Jobe arrested defendant. On the same day, Jobe conducted a four-hour recorded interview with defendant. Jobe advised defendant of the warnings pursuant to Miranda v . Arizona (1966) 384 U.S. 436 ( Miranda ).

Defendant said he took care of J.J. and her younger brother because their parents worked and went to school. Defendant said he took the children to school, picked them up, and they often stayed overnight at his house on weekdays. Their parents picked them up on the weekends. Detective Jobe asked defendant if he knew J.J.'s age. Defendant said she was 11 years old.

As the interview continued, Detective Jobe said J.J. told them a secret, provided some details about J.J.'s statements, and asked defendant what happened. Defendant was shocked by the accusations. Defendant started talking about himself in the third person as the "other Juan" who did what he wanted, could not be controlled by defendant, and did a lot to J.J. Defendant said he would never intentionally hurt J.J. Jobe asked defendant what he had done and not some third person. Defendant said he got too close to J.J.

In the midst of this exchange, defendant said: "I don't know if I want to answer anything else. I don't know give me a second." Detective Jobe kept asking questions. A few moments later, defendant said: " 'I'm not going to say anything more.' "

Page 7

Detective Jobe continued to question defendant. Defendant eventually said that he touched J.J.'s breast and vaginal areas, and he "grinded" on her body with his penis. Defendant said he could not remember how many times these things happened. Defendant also said he had pornography on his computer, and J.J. might have looked at the images.

The search warrant

Also, on March 18, 2014, the police searched defendant's residence pursuant to a warrant and seized a computer and a "thumb drive." It was later determined that the devices contained both adult and child pornography.

The initial complaint

On March 20, 2014, the initial felony complaint was filed that charged defendant with counts 1 through 6, commission of a lewd and lascivious act upon J.J., a child under the age of 14 years (§ 288, subd. (a)), with each act alleged to have occurred on or about and between January 1, 2013, and March 15, 2014.

As to each lewd act, it was alleged defendant committed the following specific conduct: count 1, hand to vagina; count 2, hand to breasts; count 3, mouth to vagina ;

Page 8

count 4, mouth to breasts; count 5, penis to vagina; and count 6, penis to buttocks. It was also alleged that each offense was a serious felony (§ 1192.7, subd. (c)).

The complaint described J.J. as a child under the age of 14 years. It did not allege J.J.'s precise age or date or year of birth at the time of the offenses.

On March 20, 2014, defendant made his first court appearance. He was represented by retained counsel, Richard Alvarez, and pleaded not guilty. The court set bail, scheduled a hearing for defendant's motion to reduce bail or release him on his own recognizance (OR), and referred the matter to the probation department for a report.

Motion to reduce bail and OR report

On March 27, 2014, defendant moved for release on his own recognizance (OR) or reduction of bail, and argued he was a good candidate for release because he had no prior criminal history, had ties to the community, and would obey a no-contact order with the victim and her family.

On March 28, 2014, the probation department filed an OR report with the court. The report listed the charged violations of section 288, subdivision (a) and stated defendant's maximum possible exposure was 18 years in prison.

The report summarized the circumstances of the offenses from police reports. It stated that on March 15, 2014, officers were dispatched to the hospital "regarding a sexually abused 11 year old female ." (Italics added.) It also summarized defendant's postarrest statements:

"During questioning, the defendant allegedly admitted to touching the victim's breast and groin area, but could not remember how many times it had occurred because he had mentally tried to block it out. He allegedly admitted to 'grinding' on the victim with his penis, skin to skin, but advised he never penetrated her vagina or anus. He allegedly stated he had shown the victim pornographic videos, but the victim only watched for a 'few short seconds.' "

Page 9

Denial of OR release

On April 1, 2014, Judge Hollman conducted a hearing on defendant's motion for OR release. Defendant was present with Mr. Alvarez. Chelsea Wayt appeared for the People. The court denied defendant's motion for OR release and did not reduce bail.

On April 22, 2014, defendant appeared with Mr. Alvarez; Ms. Wayt represented the People. Judge Hollman granted defendant's motion to continue for futher investigation.

On May 21, 2014, Judge Hollman convened another hearing. Defendant appeared with another attorney on Mr. Alvarez's behalf, and the court granted defendant's motion to again continue the matter.

The June 2014 hearings

As we will discuss below, defendant alleges that at some point in June 2014, the People purportedly extended a plea offer of 10 years based on the six counts in the initial complaint, and Mr. Alvarez advised him not to accept the offer because he would likely receive three to six years for the six charged violations of section 288, subdivision (a).

Such a plea offer was not placed on the record of the two hearings that were held in June 2014. The appellate record only contains minute orders and not the reporter's transcripts for those hearings.

On June 10, 2014, Judge Papadakis convened a hearing in place of Judge Hollman, to set the preliminary hearing. Defendant appeared with Mr. Alvarez, and Ms. Wayt represented the People. According to the minute order, the court granted defendant's motion to continue because of the lack of discovery. The minute order also states that defense counsel requested the continuance to speak to Judge Hollman to ask for a section 288.1 report on defendant's suitability for probation.

On June 26, 2014, Judge Hollman convened another hearing. Defendant appeared with Mr. Alvarez, and Ms. Wayt represented the People. The minute order states the court granted defendant's motion to continue, and that the People were going to file an

Page 10

amended complaint. The minute order did not identify the nature of the anticipated amendment.

On July 18, 2014, Mr. Alvarez filed a motion for the court to appoint an expert to assist in the preparation of a motion to suppress defendant's post-arrest interview, and to support the argument that defendant was subject to coercion. The court granted the motion.

First amended complaint

On July 22, 2014, a first amended felony complaint was filed that charged defendant with counts 1 through 6, commission of lewd and lascivious acts upon J.J., a child under the age of 14 years, with all acts alleged to have occurred on or about and between January 1, 2013 and March 15, 2014. It alleged the same specific lewd acts for each count as stated in the initial complaint. (§ 288, subd. (a).)

As to each of counts 1 through 6, it was alleged the defendant had substantial sexual conduct with a victim who was under the age of 14 years. (§§ 288, 288.5, 1203.066, subd. (a)(8)).

The amended complaint also alleged a new count 7, oral copulation of J.J., a child who was 10 years of age or younger, by defendant, a person 18 years of age and older, "to wit, mouth to vagina" (§ 288.7, subd. (b)), and that the offense occurred on or about and between January 1, 2013 and January 18, 2014. A violation of section 288.7, subdivision (b) is punishable by a term of 15 years to life.

The amended complaint did not allege J.J.'s date of birth or the precise date each offense was alleged to have occurred.

Page 11

On July 23, 2014, defendant appeared with Mr. Alvarez. He was arraigned and pleaded not guilty to the amended complaint. The court granted defendant's motion to continue for further investigation.

Additional defense motions

On December 12, 2014, defendant, represented by Mr. Alvarez, filed a motion to suppress the entirety of his postarrest interview as involuntary and obtained in violation of Miranda . Defendant also moved to continue the preliminary hearing and the hearing on the motion to suppress because of the lack of discovery, and that motion was granted.

In 2015 and 2016, Mr. Alvarez filed additional motions for fees for experts to testify at a suppression hearing and to compel the People to comply with prior discovery orders. The court granted these motions and continued the preliminary hearing at the request of both parties.

On January 27, 2016, nearly two years after defendant's arrest, Judge Hollman conducted the preliminary hearing. Mr. Alvarez again represented defendant; Ms. Wayt appeared for the People.

Detective Jobe was the primary witness. As set forth in the factual summary above, Jobe testified about meeting with J.J. and her parents at the hospital, and that they said J.J.'s birthdate was January 19, 2003.

As Detective Jobe started to testify about J.J.'s statements at the forensic interview, Mr. Alvarez objected and argued the People had to establish a foundation for her competence as a witness. The court asked if J.J. was 11 years old. Mr. Alvarez said the victim was alleged "to be younger than that." The prosecutor said J.J. was 11 years old at the time of the interview.

Thereafter, the court allowed both attorneys to asked Detective Jobe about whether J.J. demonstrated her competency during the forensic interview and knew the difference between telling the truth and a lie. The court overruled defendant's objections.

Page 12

Detective Jobe testified about J.J.s' account of the molestations, as set forth in the factual summary above. Jobe testified when he initially met J.J. and her parents at the hospital, he received J.J.'s underwear that she had been wearing during the last molestation incident that occurred on March 14, 2014. On cross-examination, in response to Mr. Alvarez's questions, Jobe admitted the underwear was still in the police department's possession, and it had never been tested for semen or DNA. Also, on cross-examination, Jobe testified J.J. was physically examined by a forensic nurse, and there were no injuries to her body. The nurse collected samples from J.J.'s body but did not find any foreign matter or evidence on her body connected to defendant.

At the conclusion of the hearing, Mr. Alvarez argued the court could not hold defendant to answer on count 7, oral copulation of J.J., a child who was 10 years of age or younger (§ 288.7, subd. (b)). J.J.'s statements, as recounted by Detective Jobe, were extremely vague about the specific dates and details of each alleged act, and there was no evidence about whether she was under the age of 10 years old when the acts alleged in count 7 occurred. Ms. Wayt replied that J.J. turned 10 years old on January 19, 2014, less than two months before she reported the molestations to her parents and Jobe, and J.J. described an act of oral copulation that occurred when she was with defendant.

The court asked the parties whether they would stipulate that J.J.'s birthday was January 19, 2003, and both Mr. Alvarez and Ms. Wayt agreed. Mr. Alvarez again objected to holding defendant to answer on count 7 because there still was no evidence when that alleged act occurred.

The court overruled defense counsel's objections and held defendant to answer to all counts.

The information

On February 10, 2016, the information was filed that charged defendant with count 1, oral copulation of a child who is 10 years of age or younger, by a person 18

Page 13

years of age and older (§ 288.7, subd. (b)), committed on or about and between January 1, 2013 and January 18, 2014.

Defendant was also charged with counts 2 through 7, commission of lewd and lascivious acts upon a child under the age of 14 years (§ 288, subd. (a)), based on the same specific lewd acts as previously alleged in the complaints, on or about and between January 1, 2013 and March 15, 2014, with special allegations for each count that the victim was under the age of 14 years and defendant had substantial sexual conduct with the victim. (§§ 288, 288.5, 1203.066, subd. (a)(8)).

The information alleged count 8, possession of child or youth pornography, consisting of both videos and photographs, on or between January 1, 2013 and March 15, 2014 (§ 311.11, subd. (a)).

Substitution of counsel

On February 11, 2016, Mr. Alvarez withdrew from representing defendant and the court appointed the public defender. Defendant pleaded not guilty and denied the special allegations in the information.

On May 11, 2016, defendant, represented by Elizabeth Durbin of the public defender's office, filed a section 995 motion to set aside count 1, oral copulation of a child under the age of 10 years in violation of section 288.7, subdivision (b). Defendant argued there was no evidence at the preliminary hearing about when this alleged act occurred or the victim's age at the time. The People's opposition argued there was a reasonable inference that defendant molested the victim over a period of several months, including when she was 10 years old, since she turned 11 years old just a few weeks before she reported the molestations.

On May 27, 2016, the court denied defendant's motion to dismiss.

Page 14

Pre-pretrial hearing

On January 12, 2017, Judge Paden convened a pre-pretrial hearing. Defendant appeared with Mr. Hiddleston, the deputy public defender. Ms. Wayt appeared for the People.

Mr. Hiddleston stated he had just received the case because defendant's prior public defenders had left the office. The following exchange ensued:

"MR. HIDDLESTON: ... Apparently there was some sort of offer way back about ten years.

"Ms. WAYT: Not a - no. Not any longer, Your Honor. There was [ sic ] additional charges that were filed when further evidence came forward regarding the age."

The court asked the attorneys to discuss the matter in chambers. When the court returned to the record, it advised defendant that it was going to grant defense counsel's motion to continue, and that counsel would talk with him about making "a realistic attempt to settle this case. And he's going to give you some information you're not going to want to hear. But you need to listen to him." Ms. Wayt stated defendant's maximum exposure was 10 years eight months, plus 15 years to life.

Motion to reinstate alleged plea offer

On March 17, 2017, defendant, represented by Mr. Hiddleston, filed a motion to "reinstate" a plea offer that the prosecutor allegedly extended to him in June 2014, when defendant was charged under the initial complaint with six felony violations of section 288, subdivision (a).

The motion alleged that in June 2014, there were settlement negotiations and Ms. Wayt, the deputy district attorney, made a 10-year plea offer to defendant's prior attorney, Mr. Alvarez, under the initial complaint that charged defendant with six counts

Page 15

of committing lewd and lascivious acts in violation of section 288, subdivision (a). The motion further alleged Mr. Alvarez advised defendant not to accept the offer because he could get three to six years instead. Defendant declined the offer. After that, the People filed the amended complaint that again alleged six violations of section 288, subdivision (a) and added the charge of oral copulation of a child under the age of 10 years in violation of section 288.7, subdivision (b), that carried a term of 15 years to life.

Defendant's declaration

The motion was supported by a declaration from defendant, signed under penalty of perjury. Defendant declared that in June 2014, when he was still charged with "non-life allegations," he was offered a plea bargain of 10 years. Mr. Alvarez advised against accepting it, stating that it was too much time for these kinds of charges, and that defendant could get three to six years. Defendant declared that Mr. Alvarez did not advise him that it was possible the complaint could be changed to add a life charge.

Defendant declared that when the prosecutor added the section 288.7, subdivision (b) charge that carried a sentence of 15 years to life, he was told that 10 years was "no longer on the table." Mr. Alvarez advised "there was no way I would get life, in that the D.A. was charging too much." Defendant also declared: "Had I been advised from the beginning how difficult it is to be acquitted on a confession case, or that I could end up getting 15 to life, I would have accepted the 10 years."

The motion was also supported by a declaration from Elizabeth Bales, the deputy public defender who represented defendant in February 2016. Ms. Bales stated that she told Ms. Wayt that if defendant had been told not to accept a plea offer of 10 years, that should not be held against him and asked if Ms. Wayt would again offer 10 years. Ms. Wayt said no, and she would not make any offers except for life because the victim and her family wanted to proceed with the case. Ms. Bales declared Ms. Wayt "never denied that a 10-year offer had been previously extended."

Page 16

Ineffective assistance

Based on defendant's declaration, the motion asserted that Mr. Alvarez rendered ineffective assistance when he told defendant not to accept the 10-year plea offer, and he failed to realize that defendant could be charged with violating section 288.7, oral copulation of a child 10 years of age or younger that carried a term of 15 years to life, based on the allegations in the initial complaint.

Defendant argued that based on Mr. Alvarez's erroneous advice, he was denied his constitutional right to effective assistance of counsel, and the error was prejudicial because defendant now faced a life term when he could have entered a plea to the charges in the initial complaint that would have resulted in a shorter determinate term.

Defendant further argued the appropriate remedy for this violation of his right to counsel was for the court to order the People to reinstate the plea offer of 10 years that had been extended in June 2014, based on the charges in the initial complaint.

The People's opposition

On April 21, 2017, the People filed a response and opposition to defendant's motion to reinstate the alleged plea offer. The pleading was filed and signed by Ms. Wayt. The People "emphatically maintain[ed]" that a 10-year offer was never extended to defendant, and the People could revoke any plea offer before it was accepted by the defendant.

The People's opposition set forth a procedural history of the case. These allegations were not supported by sworn declarations from Ms. Wayt or anyone else in the district attorney's office.

According to the People's opposition, on June 10, 2014, a "visiting" judge met with the parties in chambers and defense counsel requested probation. The People said,

Page 17

" '[N]o way.' " Defense counsel asked to delay discussing an indicated sentence until Judge Hollman returned. Defense counsel then asked the People to consider a plea offer if Judge Hollman did not agree to probation.

The People's opposition to the motion stated:

"In response the People said that an offer would be at least ten years in prison but no offer was extended. Subsequently, the People received additional evidence and informed defense counsel on June 26, 2014[ ] that they would be amending the complaint to include a special allegation of substantial sexual conduct and an additional count of [violating] ... section 288.7(b). On that same date, defense counsel asked the court to consider probation which Judge Hollman respectfully declined. It was not until December 16, 2014, that defense counsel re-visited the topic of plea negotiations and suggested a term of 18 years. The People did not extend that, or any offer on that date.

"Approximately one year later on December 8, 2015, the People and defense appeared for the preliminary hearing confirmation in this matter. The defense indicated that they were not ready to proceed and again requested an offer from the People. The People informed defense counsel that an offer will not be extended to the defendant unless he agrees to a reasonable, very high term. Between December 16, 2014 and December 8, 2015 the People continued their investigation and uncovered additional inculpatory evidence against the defendant including computer forensics. On January 26, 2016 the defense offered 15 years which the People rejected on that date and confirmed the preliminary hearing for the following day. After [the] preliminary hearing defense counsel [Mr. Alvarez] substituted out and the public defender was appointed. On April 22, 2016 the public defender asked whether the People would make an offer in this case. The People replied that the victim's family had exercised their rights under Marsy's Law and did not want an offer extended in this case that did not include a life term."

Page 18

Defendant's reply

On April 27, 2017, defendant filed a reply to the People's opposition. Defendant asserted the People failed to address his contention that Mr. Alvarez, his prior attorney, was prejudicially ineffective because he told defendant not to accept the People's plea offer of 10 years.

Defendant argued that when Mr. Alvarez told defendant to reject the plea offer, defendant had already been charged in count 3 of the initial complaint with violating section 288, subdivision (a) by committing the lewd act of "mouth to vagina." Defendant further asserted Mr. Alvarez failed to realize that same allegation would also support a charge of violating section 288.7, subdivision (b), oral copulation of a child 10 years of age or younger, that carried a term of 15 years to life. Defendant argued a competent lawyer would have realized this possibility and told defendant to accept the 10-year plea offer to the charges in the initial complaint.

Defendant further argued that based on the People's unsworn assertions in the opposition about the case, Mr. Alvarez was also ineffective because he kept asking the court to place defendant on probation, even after the complaint was amended to add the more serious violation of section 288.7, subdivision (b), since "[n]o competent lawyer could have taken this approach."

On May 22 and 24, 2017, Judge Paden conducted an evidentiary hearing on defendant's motion to reinstate the alleged plea offer. Defendant was represented by both Angela Krueger and Mr. Hiddleston of the public defender's office. Ms. Wayt appeared for the People. The court took judicial notice of the entire file to establish the procedural

Page 19

history. The court also granted defendant's motion to take judicial notice of the reporter's transcript for January 12, 2017.

Ms. Krueger stated she had subpoenaed Ms. Wayt to testify about the plea discussions that were held in chambers. Ms. Wayt said she had never been personally served. The court directed Ms. Krueger to proceed with her case, and it would determine whether Ms. Wayt would testify.

Mr. Alvarez's testimony

Mr. Alvarez, defendant's first attorney, was the primary witness. He was hired by defendant's family in March 2014, just prior to the arraignment, and represented defendant until after the preliminary hearing.

Mr. Alvarez testified when he reviewed the initial complaint, he checked the victim's date of birth to confirm she was under the age of 14 years, but he could not remember what her precise age was. It "might have been the case" that the victim was 10 years old, but he could not recall.

Discovery

Mr. Alvarez testified that at the time of the arraignment or shortly afterwards, he received an initial discovery packet of very basic police reports. One report stated defendant made statements to an officer "that didn't help him." Mr. Alvarez did not receive the entirety of defendant's recorded postarrest statements, any results from the victim's physical examination, or any statements or reports from the victim's forensic interview.

Page 20

On April 1, 2014, Mr. Alvarez appeared for a hearing on his motion for bail reduction/OR release. Mr. Alvarez still did not have the entire discovery in the case. Mr. Alvarez testified it seemed "there was discovery we didn't have, and we had to keep seeking it ...." Mr. Alvarez's discussions with Ms. Wayt usually concerned discovery, and his office was still requesting discovery into May 2014.

As of May 21, 2014, Mr. Alvarez had requested results from the Department of Justice regarding whether there was DNA evidence from the victim's physical examination but was informed the results were not available. There was information that the victim's younger brother might have been present during some of the molestations, but otherwise it was a "she said/he said kind of thing." As of May 28, 2014, Mr. Alvarez had not received the interview with the victim's brother, but he would have asked for a continuance to get the information because it might have helped defendant. He finally got the information at a later date but could not remember when that happened.

Mr. Alvarez could not remember when he finally received discovery for the victim's recorded interview and defendant's postarrest interview. As of February 24, 2015, he had not received discovery of what was found on defendant's computer. He was later told that child pornography was on the computer. The People were reluctant to turn over discovery and there were several motions addressing this matter.

Amended charges

Mr. Alvarez testified the initial complaint alleged six counts of committing lewd acts in violation of section 288, subdivision (a). He advised defendant that the maximum punishment for those charges was 18 years.

Mr. Alvarez recalled that count 3 in the initial complaint alleged a lewd act in violation of section 288, subdivision (a) based on defendant's conduct of "mouth to

Page 21

vagina," that was consistent with an act of oral copulation. However, defendant was not initially charged with oral copulation. Mr. Alvarez knew that an offense of oral copulation against a child under the age of 10 years in violation of section 288.7, subdivision (b) carried the sentence of 15 years to life.

Mr. Alvarez testified he appeared for a hearing on April 22, 2014, and asked for a continuance to further investigate the case. Mr. Alvarez could not recall if he advised defendant, at the time of that hearing, that the prosecutor could amend the complaint to charge the more serious offense of section 288.7. Mr. Alvarez had another attorney appear for the next court date on May 21, 2014.

The June 2014 hearings

Mr. Alvarez reviewed the minute order for the hearing on June 10, 2014. It showed that he attended the hearing, but he did not have any independent recollection of it. Mr. Alvarez testified it was likely he discussed the case in chambers, and Ms. Wayt would have been present. He believed he asked the court "to consider probation in [defendant's] matter." "The Court didn't disagree. The People objected, and the Court would not do it over the People's objection."

Mr. Alvarez could not recall if Judge Papadakis presided over the June 10, 2014, hearing. If he had, Mr. Alvarez would not have discussed a possible settlement of the case with Ms. Wayt because Judge Papadakis was a "tough judge."

Mr. Alvarez testified he waited for Judge Hollman to return for the next hearing, which was on June 26, 2014. Mr. Alvarez asked Judge Hollman to consider sending the case for a section 288.1 report regarding defendant's suitability for probation.

Mr. Alvarez believed this was the hearing where Ms. Wayt said she was opposed to probation, and the court said "something like he wouldn't do it over the D.A.'s

Page 22

objection." Mr. Alvarez believed that he would have told defendant that the judge refused to agree to probation.

"Q. Did [Ms. Wayt] suggest to you that there would have to be at least ten years?

"A. I don't recall exactly that. I know Ms . Wayt never made a hard and fast offer to [defendant] .

"Q. And by hard and fast offer, do you mean that she never expressed a willingness to change the charges, correct?

"A. No, I don't think she ever expressed a willingness to accept— her and I never discussed an exact time , an exact time sentence .

"Q. Okay. So does that mean that you never told [defendant] that the D.A. had suggested ten years would be a reasonable sentence for his case?

"A. I don't recall that. I do recall telling [defendant], based on his background, the charges, while probation seemed out of reach , given Ms . Wayt's position , we could still get something reasonable .

"Q. Did you suggest to [defendant] that you thought he could get three years in state prison?

"A. I don't know about three years. But I knew something within the four to five to six range was not unreasonable for [defendant].

"Q. And you advised him of that?

"A. That that's what we would be fighting for, given the evidence in this case."

Mr. Alvarez remembered the complaint was later amended to add a violation of section 288.7, which carried a life sentence. He could not remember if Ms. Wayt told him at the June 26, 2014, hearing, or anytime in advance, that she was going to amend the complaint to add the section 288.7 violation. Mr. Alvarez believed he would have advised defendant about the amendment and the potential life sentence, but he could not remember if he did so.

Page 23

Failure to request an indicated sentence

Mr. Alvarez testified he did not ask Judge Hollman for an indicated sentence on the six counts charged in the initial complaint of lewd and lascivious acts in violation of section 288, subdivision (a), because of the People's opposition. There was also outstanding discovery which he thought would assist defendant and put him in a better position before he entered a plea. Mr. Alvarez agreed that if defendant pleaded to the charges in the initial complaint, the only question would have been the indicated sentence. Mr. Alvarez never advised defendant to plead to the "sheet," i.e., the initial complaint.

The preliminary hearing

Mr. Alvarez testified the amended complaint with the life charge was filed before the preliminary hearing. The preliminary hearing was held on January 27, 2016, which was a year and a half later.

Mr. Alvarez testified that a point of contention at the preliminary hearing was the victim's ability to describe how old she was during the alleged molestations. Mr. Alvarez cross-examined the testifying officer about the victim's age and tried to show the section 288.7 charge should be dismissed because of uncertainty about the victim's age and when the oral copulation occurred.

Lack of a plea offer

Mr. Alvarez testified that during the entire two and a half years he represented defendant, the People never extended an offer for him to plead guilty.

"Q. Do you recall making - extending any offer to Ms. Wayt ... do you recall making an offer to settle the case?

Page 24

"A. ... I know I discussed this case with Ms. Wayt. Usually our discussions were regarding discovery, the fact that it might be coming a little slow. But it was discovery that was necessary . [¶] You know, it's hard to really discuss offers when you don't have complete discovery. I know that Ms. Wayt and I discussed - more me, but it wasn't 18 [years], it wasn't 15 [years].

"THE COURT: Was there ever an offer made ... by the D . A . 's offer that you took back to [defendant] and said this is the offer the People are presenting?

"[MR. ALVAREZ]: No , Your Honor ." (Italics added.)

Defendant's testimony

Defendant testified at the hearing for the limited purpose of his knowledge of the alleged plea offer. Defendant's testimony was consistent with his sworn declaration. In June 2014, Mr. Alvarez told him there was an offer to plead guilty for 10 years, and his case typically should be a "three- to six-year case." Mr. Alvarez advised him against taking the 10-year offer. Defendant followed Mr. Alvarez's advice and did not tell the court that he was willing to plead to 10 years.

Defendant testified that prior to the filing of the amended complaint, Mr. Alvarez never told him the prosecutor was going to add a charge "carrying life." Mr. Alvarez never told him to plead "to the ten years or ... to the sheet" because the prosecutor might add a life charge. About a week or two after the amendment was filed, Mr. Alvarez told him the charges had "changed to a life charge." Mr. Alvarez said he could argue for the "ten years back" or "we could go to trial and fight the case."

Defendant testified he would have accepted a term of 10 years and pleaded to the initial complaint if he had known that a life allegation was going to be charged. Defendant was not advised that it would be difficult to be acquitted on a confession case. Defendant thought there was still a chance he could be acquitted even if he had confessed to something. Defendant did not recall his postarrest statements because "apparently I slipped into third person during the interrogation ...."

Page 25

The court denies defendant's request to call Ms. Wayt

Later during the hearing, Ms. Krueger, defendant's attorney, advised the court that she offered to stipulate that Ms. Wayt would testify consistent with the statements contained in the People's opposition to the motion to reinstate the plea.

Ms. Krueger said Ms. Wayt refused to so stipulate. Ms. Krueger again moved to call Ms. Wayt as a witness to the plea negotiations, to fill the gaps left by Mr. Alvarez's testimony about whether she made a 10-year offer at one of the hearings in June 2014, and whether she gave advanced notice to Mr. Alvarez about the amendment to add the more serious charge.

The court replied it was "very clear" that a 10-year offer was never made. Ms. Krueger argued that even without an offer, Mr. Alvarez had a duty to instruct defendant to plea to the initial complaint and ask the court for an indicated sentence of six years to avoid the future amendment to a life charge, and the court "would have been completely empowered to give that indicated sentence."

The court denied defendant's request to call Ms. Wayt to testify about the parties' discussions in chambers since they were off-the-record conversations.

The parties' arguments

Ms. Krueger argued Mr. Alvarez had given constitutionally ineffective assistance and should have advised defendant to immediately plead to the six violations of section 288, subdivision (a) in the initial complaint to avoid the more serious life charge. Mr. Alvarez should have realized that based on the allegations in the initial complaint, defendant could be charged with the more serious offense of oral copulation of a child under the age of 10 years, that exposed him to a life term. It was also unreasonable for Mr. Alvarez to ask the court to consider probation, and instead he should have requested an indicated sentence on the charges in the initial complaint before the amended charges were added. Ms. Krueger argued the court had to "come up with a remedy that must neutralize the taint of [Mr. Alvarez's] constitutional violation" when he failed to ask

Page 26

Judge Hollman for an indicated sentence. Ms. Krueger asked the court to reinstate the initial complaint so that defendant could "plead to the sheet," and he could receive a sentence between three and 18 years.

The People replied that even if the court granted defendant's motion to dismiss the amended complaint, the district attorney's office controlled the charges and could refile. The court agreed. Ms. Krueger said that it would not be appropriate for the district attorney to refile the more serious life charge "because that does not neutralize the taint of Mr. Alvarez' ineffective assistance of counsel ...."

Ms. Wayt stated it was unrealistic to expect Mr. Alvarez to look at the initial complaint and realize a more serious oral copulation charge was going to be filed. The "date ranges were not clear" in the initial complaint and covered a time where the victim was also 11 years old. Ms. Wayt further argued it was reasonable for Mr. Alvarez to wait for full discovery of the interviews and forensic evidence before he advised defendant to enter a plea, because "we would be in a completely reverse situation had he pled him out and then something came back not in the Prosecution's favor."

The court asked Ms. Wayt how and why the oral copulation charge with the life sentence was added. Ms. Wayt stated she asked the investigating officer to again talk to the victim and clarify the time frame. Ms. Wayt conceded the victim's age at the time of the offenses was "still a very disputed issue" at the preliminary hearing.

Ms. Wayt further stated that in her opposition to defendant's motion to reinstate the alleged plea offer, she wrote that she was going to amend the initial complaint to add the more serious charge "because in my mind that's what I did amend to." She clarified that when she spoke to Mr. Alvarez, she told him that she was going to add the substantial sexual conduct allegation, which would have prohibited probation, so probation would not be an issue, and the amended complaint "was potentially adding additional counts, which wasn't done until months after the initial complaint, because that

Page 27

investigation wasn't complete." In her experience, "never once has defense attorney pled their client to the sheet at the arraignment" or prior to having full discovery.

The court's denial of defendant's motion

The court found that based on Mr. Alvarez's hearing testimony, "there was no offer of ten years ever made. It may have been discussed. But unless you have an offer that Mr. Alvarez can take to [defendant] and [defendant] says yes or no ... it's all pie in the sky." The court noted that the district attorney's office could have dismissed and refiled the more serious charge.

The court acknowledged that count 3 in the initial complaint alleged an act of lewd conduct based on "mouth to vagina" and "should have put Mr. Alvarez on notice that [defendant] was exposed to a possible additional charge that would include life," if Mr. Alvarez "knew all the nuances of the [section] 288 code sections ...."

The court framed defendant's argument as being that Mr. Alvarez should have told him there was a possibility the complaint could be amended to add a life charge if the victim was 10 years old and advised defendant to immediately plead to the less serious charges in the initial complaint. "The issue is not really anything [the district attorney's] office did. You guys aren't at fault here. I find no fault with anything Ms. Wayt did. The issue here is what Mr. Alvarez did or didn't do." The court further stated, "I'm not sure Mr. Alvarez ever took a realistic approach to this case."

The court stated that the defendant wanted it to find that given Mr. Alvarez's bad advice, the court should dismiss the amended complaint and allow him to plead to the charges in the initial complaint.

" ... I know what you're asking. I certainly see the issues. And it's a significant issue in my mind, but not enough that I'll grant your motion.

Page 28

"There was ongoing discovery. There is an issue about the age of the complaining victim at the time of count three. That was a big factual issue at the preliminary hearing. So the possibility of a life charge may have been there, but there was no certainty prior to the complaint being alleged. [¶] And it's no certainty at this point. We could go to trial and the jury could find him not guilty of that charge. [¶] So with the ongoing discovery, there's no clear evidence that an offer of ten years was ever made. It seems to be Mr. Alvarez couldn't say that. So I don't have that as something that I'm taking. There's factual issues.

"For all those reasons I think your issue is a good one. The appellate court is certainly in a better position to evaluate these issues than I am. But I'm going to deny the motion.

On June 29, 2017, defendant, represented by Ms. Krueger, filed a motion to suppress his postarrest statements made to Detective Jobe. Defendant argued his statements were involuntary and obtained in violation of Miranda because Jobe never obtained an express waiver of his constitutional rights, defendant was subject to coercion and false promises of leniency, and Jobe continued to question defendant even after he said he did not want to answer any more questions.

On June 10, 2017, the People filed opposition and argued defendant impliedly waived his rights by answering questions, he was encouraged to tell the truth, and he was not threatened or coerced to make admissions.

The court's ruling

On July 14, 2017, the court stated it had watched the entire video of the interview, and found defendant understood the Miranda advisement and impliedly waived his constitutional rights at the beginning of the postarrest interview because he answered questions.

Page 29

However, the court found that about halfway through the interview, defendant said, " 'I don't know if I want to answer anything else. I don't know. Just give me a second.' " The court found defendant invoked his right to silence a few moments later, at the two-hour mark of the interview, when he said, "I'm not going to say anything anymore."

The court held that defendant's subsequent statements were obtained in violation of Miranda and would be excluded. The court was troubled by Detective Jobe's repeated statements that he believed the victim and vouched for her credibility. The court was also concerned that Jobe told defendant he could lead a normal life and be with his family if he just told them his secret. However, the court did not find defendant's statements were involuntary: "Did he make an uncoerced statement? Yes."

The court further held that while the first part of defendant's interview was admissible, it would allow the defense to call an expert at trial to testify "about a false confession."

On August 8, 2017, defendant's jury trial was scheduled to begin. Mr. Hiddleston, defendant's attorney, said the People had not made an offer, but the court had given an indicated sentence of 15 years to life on the charges in the information. The court also agreed to sign a certificate of probable cause so defendant could file an appeal on the court's denial of his motion to reinstate the plea. Defendant would enter a no contest plea based on those circumstances.

Ms. Wayt objected to the court's indicated sentence of 15 years to life and wanted to proceed to trial.

The court accepted defendant's request to change his plea based on the conditions stated by defense counsel. The court advised defendant of his constitutional rights and obtained his waivers. Thereafter, defendant pleaded no contest to the eight counts in the information, including oral copulation of a child under the age of 10 years (§ 288.7,

Page 30

subd. (b)) and admitted the allegations about substantial sexual conduct. The court referred the matter to the probation department.

Motion to withdraw plea

On September 6, 2017, defendant filed a motion to withdraw his plea, based on his handwritten declaration that he entered the plea under duress and false pretenses, he was not given correct information about time credits, and he previously rejected a similar plea offer of 15 years to life. The People filed opposition and asserted there had never been any prior plea offers in this case, the People objected to the court's indicated sentence and defendant's request to plead, and defendant entered a knowing, voluntary, and intelligent plea.

Sentencing hearing

On October 5, 2017, the court heard and denied defendant's Marsden motion to discharge Mr. Hiddleston and also denied his motion to withdraw his plea.

On October 10, 2017, the court conducted the sentencing hearing and advised the parties that it had already denied defendant's motion to withdraw his plea.

Defense counsel advised the court that defendant wanted to "suspend" the maximum restitution fine of $10,000 but did not offer any further explanation for that request or object to the fines and fees that were recommended in the probation report.

Defendant addressed the court and stated it lacked jurisdiction and improperly "imposed" an attorney on him because he was "sui juris.... I am myself. I'm sovereign." The court rejected defendant's objections.

The court sentenced defendant to 15 years to life for count 1, violation of section 288.7, with concurrent upper terms of eight years for each of counts 2 through 7, violations of section 288, subd. (a)), and a concurrent upper term of three years for count 8.

Page 31

The court imposed a $10,000 restitution fine and stayed the parole revocation fine. The court also ordered a $1,000 restitution fine under section 294, subdivision (b); restitution of $960 to the victim's compensation claims board under section 1202.4, subdivision (f); victim restitution to remain open; $800 fee for the CART examination, under section 1203.1, subdivisions (b) and (h); $320 for the court operations assessment; and $240 for the criminal conviction assessment.

On October 10, 2017, defendant filed a notice of appeal. The court granted defendant's request for a certificate of probable cause as to the denial of his motion to reinstate the prior plea offer.

I. Defendant's Ineffective Assistance Contentions

Defendant contends the court erroneously denied his motion to reinstate the alleged plea offer of 10 years because there was evidence of two separate acts of ineffective assistance.

First, defendant argues that Mr. Alvarez was prejudicially ineffective because he advised defendant not to accept the People's alleged plea offer of 10 years on the six section 288, subdivision (a) offenses charged in the initial complaint. Defendant asserts Mr. Alvarez failed to recognize that count 3 of the initial complaint alleged an act of oral copulation, and that such an act committed on a child under the age of 10 years would result in a sentence of 15 years to life (§ 288.7, subd. (b)).

Second, defendant asserts that even if the People never made a plea offer, Mr. Alvarez was prejudicially ineffective because he should have immediately realized defendant could be charged with the more serious section 288.7, subdivision (b) offense based on the allegations in the initial complaint, and then asked Judge Hollman for an indicated sentence for the six violations of section 288, subdivision (a) alleged in the initial complaint, before the People had the opportunity to add the life charge in the amended complaint.

Page 32

Defendant asserts that based upon either theory of ineffective assistance, counsel's errors were prejudicial because defendant would have accepted the alleged plea offer and/or pleaded to the less serious charges in the initial complaint. Defendant argues the matter must be remanded for the court to order the People to reinstate the initial complaint that alleged the six violations of section 288, subdivision (a), and for defendant to plead to those charges. Defendant contends such a remedy is the only way to "neutralize the taint" of counsel's ineffective representation, as provided in Lafler v . Cooper (2012) 566 U.S. 156, 170-171 ( Lafler ).

A . Ineffective Assistance

"In order to demonstrate ineffective assistance, a defendant must first show counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel's performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" ( People v . Williams (1997) 16 Cal.4th 153, 214-215.)

B . Plea Negotiations

A defendant is entitled to the effective assistance of counsel at the plea and plea bargaining stages of criminal proceedings. ( Lafler , supra , 566 U.S. at p 165; Missouri v . Frye (2012) 566 U.S. 134, 143-144 ( Frye ); In re Alvernaz (1992) 2 Cal.4th 924, 933-935 ( Alvernaz ); In re Vargas (2000) 83 Cal.App.4th 1125, 1133 ( Vargas ).)

A defense attorney has "the obligation to investigate all defenses, explore the factual bases for defenses [citation] and the applicable law. [Citation.]' [Citation.] 'The defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.]' [Citation.]" ( Vargas , supra , 83 Cal.App.4th at p. 1133.)

Page 33

Defense counsel also has the "duty to investigate and pursue possible dispositions by way of plea." ( People v . Brown (1986) 177 Cal.App.3d 537, 549.) This duty at a minimum "includes the obligation to initiate plea negotiations where the facts and circumstances of the offense and its proof, as well as an assessment of available factual and legal defenses, would lead a reasonably competent counsel to believe that there is a reasonable possibility of a result favorable to the accused through the process of plea negotiations. [Citation.]" ( Ibid ., fn. omitted.)

Although the decision to plead guilty pursuant to a plea bargain instead of proceeding to trial is a decision ultimately made by the defendant, "it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain. The defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.]" ( Alvernaz , supra , 2 Cal.4th at p. 933.) "We caution that a defense attorney's simple misjudgment as to the strength of the prosecution's case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel's judgment, will not, without more, give rise to a claim of ineffective assistance of counsel. [Citations.] Such claim 'depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.' [Citations.]" ( Id . at p. 937.)

The defense attorney "must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction. [Citations.]" ( Alvernaz , supra , 2 Cal.4th at p. 937; Frye , supra , 566 U.S. at p. 145.)

"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must

Page 34

demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." ( Frye , supra , 566 U.S. at p. 147; Alvernaz , supra , 2 Cal.4th at pp. 928-929.)

"In addition to proving that he or she would have accepted the plea bargain, a defendant also must establish the probability that it would have been approved by the trial court. Such a requirement is indispensable to a showing of prejudice because ' "[j]udicial approval is an essential condition precedent to any plea bargain" ' negotiated by the prosecution and the defense [citation], and a plea bargain is ineffective unless and until it is approved by the court. [Citations.]" ( Alvernaz , supra , 2 Cal.4th at pp. 940-941.) "[A]lthough it may well be that in our frequently overcrowded courts, judicial rejection of plea bargains is the exception rather than the general rule, we may not simply presume ... that the trial court automatically would have approved a plea bargain negotiated by the prosecutor and the defense." ( Id . at p. 941, fn. omitted.)

The defendant must show that "if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea [citation], nor a federal right that the judge accept it [citation]." ( Frye , supra , 566 U.S. at p. 148; Lafler , supra , 566 U.S. at p. 168.) "If no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue ... simply does not arise." ( Lafler , supra , 566 U.S. at p. 168.)

"[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.)

Page 35

In a contrasting situation, "where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show 'a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' [Citation.]" ( Frye , supra , 566 U.S. at p. 148; Alvernaz , supra , 2 Cal.4th at p. 934; Vargas , supra , 83 Cal.App.4th at p. 1134.)

C . Lafler

Defendant asserts that if this court finds Mr. Alvarez was prejudicially ineffective on either of the two theories raised on appeal, we must craft a remedy similar to that proposed in Lafler , supra , 566 U.S. 156.

In Lafler , the defendant rejected a plea offer that his attorney told him about and went to trial. He was convicted and sentenced to a total term significantly harsher than offered in the plea agreement. On appeal, the parties stipulated that the defendant's rejection of the plea offer was the result of poor advice from his defense counsel. Lafler held counsel's error was prejudicial because the defendant was sentenced to a significantly greater term than the plea offer, and there was a reasonable possibility the court would have accepted his plea. ( Lafler , supra , 566 U.S. at pp. 160, 164-165, 166-167.)

Lafler held the proper remedy depended upon the situation that resulted in counsel's ineffective assistance, and "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, [citation]." ( Lafler , supra , 566 U.S. at p. 170.) In some cases, that remedy would be the lesser sentence originally offered under the plea agreement. ( Ibid .)

"In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an 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, a resentencing based on the

Page 36

conviction at trial may not suffice. [Citation.] In these circumstances, 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." ( Lafler , supra , 566 U.S. at p. 171.)

Lafler concluded the appropriate remedy in that case was to order the People "to reoffer the plea agreement," after which the court could exercise its discretion to determine "whether to vacate the convictions and resentence [defendant] pursuant to the plea agreement, to vacate only some of the convictions and resentence [defendant] accordingly, or leave the convictions and sentence from trial undisturbed. [Citation.]" ( Lafler , supra , 566 U.S. at p. 174.)

We now turn to defendant's two claims of ineffective assistance.

II. The Alleged Plea Offer

Defendant's first claim of ineffective assistance is based on the assertion that the People extended a plea offer of 10 years based on the six violations of section 288, subdivision (a) alleged in the initial complaint. Defendant testified at the evidentiary hearing that Mr. Alvarez told him that a 10-year plea offer had been made and advised him not to accept it because his case could likely be settled for between three to six years instead. Defendant argues Mr. Alvarez was prejudicially ineffective because he should have realized that the allegations in the initial complaint supported the more serious charge of oral copulation on a child under the age of 10 years in violation of section 288.7, subdivision (b), and he should have told defendant to accept the plea offer to avoid a possible life term.

Defendant further asserts that Lafler sets forth the only possible remedy to "neutralize" counsel's prejudicial error, and the matter must be remanded for the court to reinstate the initial complaint, so defendant can plead to the original six violations of section 288, subdivision (a), for a possible sentence of three to 18 years.

Page 37

Defendant's arguments are based on the premise that the People actually made a plea offer of 10 years to the six counts alleged in the initial complaint, purportedly at some point in June 2014, before the complaint was amended in July 2014 to add the more serious oral copulation charge. "[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.)

A formal plea offer was never placed on the record at any time in this case. Mr. Alvarez represented defendant for the period just before the arraignment in March 2014, until after the preliminary hearing in January 2016. He testified at the evidentiary hearing that Ms. Wayt, the deputy district attorney who handled this case, never made any kind of plea offer during the entirety of his representation. The court relied on Mr. Alvarez's hearing testimony to find that there was no plea offer and rejected defendant's claim that Mr. Alvarez allegedly advised him not to accept the offer.

Defendant argues the trial court should not have relied on Mr. Alvarez's testimony since Mr. Alvarez did not have any independent memory of the procedural history of the case, whereas defendant testified at the hearing that Mr. Alvarez told him about the 10-year offer and advised him not to accept it. Defendant further asserts the trial court should not have considered Ms. Wayt's unsworn statements at the evidentiary hearing that there was never a plea offer. Defendant argues Ms. Wayt never denied an offer had been made during the exchange with the public defender at the January 10, 2017, hearing. Defendant concludes Ms. Wayt's refusal to give sworn testimony at the evidentiary hearing about the plea negotiations supports the inference that she made a plea offer and did not want to admit it.

Page 38

A defendant's claim of ineffective assistance presents a mixed question of fact and law which this court reviews independently. ( People v . Ogunmowo (2018) 23 Cal.App.5th 67, 76.) We defer to the trial court's factual determinations if supported by substantial evidence in the record and exercise our independent judgment in deciding whether the facts demonstrate trial counsel's deficient performance and any resulting prejudice to the defendant. ( Ibid .)

Based on our review of the evidentiary hearing, Mr. Alvarez's testimony supports the court's finding that a plea offer was never made. In addition, the court did not rely on any of Ms. Wayt's unsworn statements to find there was never a plea offer. While Mr. Alvarez lacked an independent memory of what happened at each specific court hearing, he unequivocally testified that he tried to discuss possible dispositions with Ms. Wayt, but she objected to his initial request for probation; she wanted to go to trial; they never discussed an exact time sentence; and she never made any type of plea offer to defendant throughout his representation of defendant. Moreover, even if Ms. Wayt's unsworn statements were considered in support of defendant's argument, her repeated insistence that a plea offer was never made does not undermine Mr. Alvarez's unequivocal statements on the subject.

We thus conclude that the trial court's finding that a plea offer was never made in this case is supported by substantial evidence, and Mr. Alvarez was not prejudicially ineffective on this first point.

III. Counsel's Failure to Advise Defendant to Immediately Plead to the Initial Complaint

Defendant's second claim of ineffective assistance is separate from his claim of a plea offer but based on the same underlying premise - that Mr. Alvarez should have realized that based on the allegations in count 3 of the initial complaint, defendant could have been charged with the more serious offense of oral copulation on a child under the age of 10 years that carried a term of 15 years to life.

Page 39

Defendant argues that based on this realization, Mr. Alvarez was ineffective because he should have immediately asked Judge Hollman for an indicated sentence and advised defendant to plead to the six violations of section 288, subdivision (a) in the initial complaint, before the People could have amended the complaint to add the more serious oral copulation charge in violation of section 288.7, subdivision (b). Defendant argues Mr. Alvarez was ineffective because during the hearings before the complaint was amended, he only asked the court to consider probation.

There are several problems with defendant's argument. Mr. Alvarez testified he did not ask Judge Hollman for an indicated sentence on the charges in the initial complaint because there was still outstanding discovery, and he thought this evidence could put defendant in a better position before he entered a plea.

The record shows that Mr. Alvarez's decision was reasonable given the nature of this case. Mr. Alvarez was retained just before the arraignment in March 2014. The initial complaint was filed in March 2014, and the amended complaint that added the more serious oral copulation charge was filed in July 2014. Mr. Alvarez testified without contradiction that, during that time, he only received discovery of "very basic police reports," including the fact that defendant made postarrest statements "that didn't help him." Mr. Alvarez did not receive the recording or transcript of defendant's entire postarrest interview or, more importantly, the victim's forensic interview. As of February 2015 (after the complaint was amended), Mr. Alvarez had not received discovery of what was on defendant's computer even though it was seized in March 2014. He later had to file numerous discovery motions. During the preliminary hearing in January 2016, Mr. Alvarez obtained the concession from Detective Jobe that the police department had seized J.J.'s underwear but never had it tested.

At the evidentiary hearing, Mr. Alvarez acknowledged that count 3 potentially described an act of oral copulation, the victim might have been under the age of 10 years old, and he could not recall her age. It is not clear from the record when Mr. Alvarez

Page 40

learned J.J.'s date and year of birth. The initial complaint alleged charges based on the assertion that she was a child under the age of 14 years but did not allege her birthdate. When defendant was interviewed by Detective Jobe immediately after his arrest, he said that J.J. was 11 years old; he was not asked if he knew her birthdate, thus eliminating the possibility he provided this information to his attorney. On March 28, 2014, the probation report filed its report on defendant's request for OR release; the report stated the victim was 11 years old.

At the evidentiary hearing, Mr. Alvarez was not asked if J.J.'s birthdate was stated in the "very basic" police reports he initially received after the March 2014 arraignment, if he received that information in the later discovery reports, or when he learned J.J.'s birthdate.

The preliminary hearing was held in January 2016, and Mr. Alvarez represented defendant. By that time, Mr. Alvarez was clearly aware of J.J.'s birthdate. He used that information to extensively cross-examine Detective Jobe about J.J.'s failure to specify when the charged offenses occurred. Mr. Alvarez urged the court not to hold defendant to answer on the oral copulation charge since she turned 11 years old in January 2014, two months before she revealed defendant's conduct to her parents, and it was impossible to know when defendant could have performed that offense. The court denied the motion. When the public defender's office assumed representation of defendant, it filed a section 995 motion to dismiss the oral copulation charge on the same basis, but that motion was also denied.

Mr. Alvarez's stated intent not to have defendant plead until he received discovery is further supported by the history of the suppression motion. On December 12, 2014, after the complaint was amended, Mr. Alvarez filed a motion to suppress the entirety of defendant's postarrest interview as involuntary and obtained in violation of Miranda . While Mr. Alvarez filed the motion, he also moved to continue it because of the lack of discovery, thus implying he still had not received discovery of relevant evidence. After

Page 41

the preliminary hearing, the suppression motion was ultimately pursued by the public defender's office. In July 2017, the trial court finally heard the motion and excluded a major portion of defendant's postarrest interview and held defendant invoked his right to silence but the officer improperly continued to question him. The portion of the interview that was excluded contained some of defendant's more damaging statements - that he touched J.J.'s breast and vagina areas, he "grinded" on her body with his penis, and he showed her pornography on his computer. If Mr. Alvarez had urged defendant to plead guilty to the initial charges before obtaining discovery of the entirety of his postarrest statements, defendant would have likely claimed ineffective assistance for counsel's advice to enter a plea before determining that some of his postarrest statements were inadmissible.

The record thus supports Mr. Alvarez's decision not to immediately ask the court for an indicated prison sentence on the initial complaint since he had not received discovery of critical information about the nature and circumstances of the charges.

Lafler held that in order to establish counsel's error during plea negotiations was prejudicial, the defendant must show "that but 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. at p. 164, italics added.) In the context of defendant's argument herein, we cannot presume that the court would have accepted any attempt by defendant to quickly plead to the initial charges. Mr. Alvarez testified that in June 2014, the prosecution strongly objected to his initial request for probation and the court stated that it would not grant probation over the People's objection. Mr. Alvarez's request for essentially no jail time was not unreasonable since defendant did not have a prior record.

Page 42

However, if defendant had offered to plead to the original charges in June 2014, even for a custodial term, there is every possibility that the prosecutor would have objected to clarify J.J.'s age and make a decision about whether to file more serious charges. Indeed, the prosecutor objected when defendant ultimately offered to plead guilty to the information, including the oral copulation count with an indicated sentence of 15 years to life, and stated her intent to go to trial on the entirety of the charges.

We thus conclude that Mr. Alvarez was not ineffective in failing to advise defendant to immediately plead to the charges in the initial complaint.

The judgment is affirmed.

/s/ _________
POOCHIGIAN, J.

WE CONCUR:

/s/ _________
LEVY, Acting P. J.

/s/ _________
MEEHAN, J.