Filed 12/24/19 P. v. Browand CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ARTHUR BROWAND,

Defendant and Appellant.

C082561

(Super. Ct. No. 15F5116)

This is an appeal from a judgment after defendant David Arthur Browand entered a negotiated plea of guilty to the following crimes against his daughter, L.: one count of forcible lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (b)), 9 counts of lewd acts on a child under the age of 14 years (§ 288, subd. (a)), and one count of penetration with a foreign object of a child under 14 years and at least 10 years younger than defendant (§ 289, subd. (j)). Defendant also pleaded no contest to one felony against his niece, H., for lewd act on a child of 14 or 15 years and at least 10 years younger than defendant. (§ 288, subd. (c).) Defendant admitted the acts constituted substantial sexual conduct. (§ 1203.066, subd. (a).) All remaining counts and allegations were dismissed. The terms of the negotiated plea specified defendant would not receive a sentence of fewer than 20 years or more than 30 years in state prison, and that he would serve at least 85 percent of the sentence.

Shortly after entering his plea, defendant moved to withdraw his plea. Defendant retained private counsel for the motion to withdraw his plea and testified at a hearing on the matter. The matter was argued extensively. Ultimately, the trial court denied the motion to withdraw the plea. As a result, the trial court entered judgment on the plea and sentenced defendant to serve 23 years 4 months in state prison. After the trial court granted a certificate of probable cause, defendant timely filed a notice of appeal.

On appeal, defendant contends (1) his trial attorney was ineffective because he disclosed an investigative report to the prosecution by which the prosecution learned of the second victim, H., (2) his trial attorney was ineffective because he withheld from defendant an investigative report showing H. had falsely accused another person, J. (H.’s sibling), of sexually molesting her, (3) his trial attorney was ineffective for failing to investigate and discover that J. believed H. had a financial motive for accusing defendant because H.’s mother stood to gain an increased inheritance from defendant’s incarceration, and (4) the trial court erred in providing the prosecution with access to the investigative report relating to alleged victim H.’s veracity during the hearing on his motion to withdraw the plea.

We conclude defendant’s trial attorneys were ineffective for disclosing the first investigative report by which the prosecution learned of the second victim, H.; in failing to give defendant an investigative report showing H. had falsely accused another person of sexual molestation; and in failing to follow up on the investigation of J. before defendant accepted the negotiated plea. However, these deficiencies were nonprejudicial. As the trial court noted, the investigative report regarding H.’s prior accusations was nearly a quarter century old and based on uncorroborated hearsay. The deficiencies also related solely to H. Nothing undermined the prosecution’s case based on crimes against L., which the preliminary hearing showed to be more extensive than the nearly 50 charges actually filed in relation to her molestations. We reject the argument that the trial court erred in disclosing the investigative report regarding J. to the prosecution because the People had a due process right to understand the basis of defendant’s motion to withdraw his plea. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Factual Basis for the Plea

The trial court found a factual basis for the plea, relying on the transcript of the preliminary hearing held on September 9, 2015. During the preliminary hearing, the following evidence was introduced:

A Redding Police Department Officer, Elizabeth Harris, spoke with L. on February 11, 2014. L. was born on June 4, 1996. L. stated that defendant, her father, molested her when she was between 9 and 12 years old. At first, he would come into L.’s bedroom, lie next to her, and touch her on her genital area over her clothing. This progressed to defendant touching her bare skin, then sometimes inserting his finger into her vagina. Sometimes he forced her to orally copulate him. L. stated that “[s]he wasn’t quite sure but she seemed to think it happened every night or every other night” from ages 9 through 12. On three occasions, defendant put marshmallow cream on his penis and forced her lick it off. She stated that every Friday defendant would pick her up from school, take her home, and molest her. Defendant threatened to kill her if she told anyone about the molestations.

Officer Harris interviewed defendant after giving him a Miranda advisement. Defendant admitted giving L. a back rub and “that he had some sexual feelings toward her at that time.” This happened “[j]ust a few times.” He also admitted rubbing L.’s vaginal area over her clothing. “He estimated it was three to five times within that two-year period.”

Officer Harris also spoke with H. on September 16, 2014. H. was born on September 5, 1988. When contacted by the officer, H. immediately asked if she was calling regarding defendant. H. stated she had been molested by defendant when she had been between 11 and 12 years old. H. explained she was staying in defendant’s home and sleeping in the same room as L. but in different beds. H. woke up in the middle of the night and noticed defendant in bed with L. After it appeared defendant fondled L. for an hour, he got into H.’s bed and “began rubbing her body” including her breasts and genital areas. These touchings were committed over H.’s clothing. Defendant stopped when it appeared that H. woke up. Defendant got up and went back to be with L. The next day, defendant gave H. a card and asked her to live with them. H. refused to ever go back to defendant’s house.

Negotiated Plea

November 17, 2015, was scheduled as the first day of defendant’s jury trial. On that day, defendant entered into a negotiated plea agreement in which he would be sentenced to serve no less than 20 years and no more than 30 years in state prison.

Motion to Withdraw the Plea

On December 8, 2015, defendant requested a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant’s appointed attorney, Jeremy West, stated defendant wanted to move to withdraw his plea but counsel did not believe there was good cause for the motion. A Marsden hearing was conducted on December 14, 2015. During the hearing, defendant’s newly retained trial attorney asserted that defendant’s counsel, Public Defender West, had not adequately investigated the charges against H., defendant had never molested H., and defendant felt pressured to accept the negotiated plea. The trial court denied the Marsden motion.

On December 30, 2015, defendant moved to substitute appointed counsel with retained counsel, Michael C. Borges. The basis for the motion was that defendant had become aware of new information that supported a motion to withdraw his plea. The motion for substitution was granted.

In January 2016, a probation officer’s report was filed that recommended defendant be sentenced to serve a term of 29 years 4 months in state prison. In the report, defendant expressed remorse for molesting L. but denied any wrongdoing with H. The report recounted that defendant planned to file a motion to withdraw the plea so that “the truth can come out.”

On March 7, 2016, defense counsel filed a redacted motion to withdraw the plea. The prosecution opposed the motion but noted it did “not have enough information to adequately address the assertions by defense counsel because they are blacked out pursuant to the request by defense counsel to seal the motion.”

The trial court conducted an in camera hearing on the motion on March 21, 2016. At the conclusion of the hearing, the trial court ordered portions of the hearing to be sealed. The trial court also informed the prosecution that “there is an issue with victim [H.]” The trial court also inquired of the prosecution as to its position regarding whether withdrawal of the plea relating to H. would allow defendant to withdraw the entire plea. The defense and prosecution submitted supplemental papers. The trial court sent an e-mail to the parties in which it asked the defense to voluntarily provide the newly discovered information to the prosecution.

On April 18, 2016, the trial court further considered the motion to withdraw the plea. During the hearing, the trial court stated: “I will make the observation that it is clear to me that [West] was in error in not making his client aware of this additional information that [Borges] has not disclosed to the People. So, certainly as to that, at least as to that victim [H.], he could withdraw his plea, but the greater question is, you know, can you really split those two things out . . . .” The trial court noted that “just the mere fact that you have two victims now increases the risk of going to trial because you’ve got two people saying that somebody has done something.” The trial court continued: “So that’s kind of where I’m at. I’m thinking that he’s probably entitled to withdraw his entire plea because I don’t know how I can separate the two . . . .” Defense counsel indicated defendant wanted to proceed with the motion.

After a lunch recess, the trial court indicated it was inclined to disclose the information supporting the motion to withdraw the plea to the prosecution. The parties discussed the issue at length and the trial court decided to disclose the information (referred to in the record as “Exhibit A”) to the prosecution.

Exhibit A consists of a two-page report dated November 5, 2014 – approximately two weeks before defendant entered his plea. In Exhibit A, a defense investigator recounted an interview with J. J. is a sibling of H. and reported that H. “uses drugs” and “was not doing well.” J. also “said his mother . . . is also a drug addict.” The investigator explained that H. “made some accusations against” defendant that he “touched her inappropriately when she was younger.” J. further stated:

“[H.] did the same thing to him when he was younger. . . . [W]hen he was about fourteen, he had a paper route in order to make money. At first he delivered papers on his skateboard and once he made enough money he bought a nice pedal bike. J[.] said his mother stole his bike and sold it for dope. J[.] said he called the police and reported his bike was stolen. J[.] said soon after that he was removed from the home and placed in a group home in Cottonwood. J[.] believes his mother coerced [H.] into making false allegations against him because he called the police about his bike. J[.] said he was never charged for it and nothing came of it. After six month[s] he was returned home. To be certain, I asked J[.] if the allegations [H.] made against him were ones where she claimed he was sexually inappropriate with her and he said yes. [¶] I asked J[.] if he ever heard [H.] mention that her uncle had touched her and he said ‘never.’ I asked if he thought [H.] was an honest person and he said ‘not at this point in her life.’ He said [H.] and his mother both use methamphetamine. [¶] J[.] was surprised no one told him about his uncle. He said he was the one who was called if there was an issue with other siblings and he finds it odd no one has told him what is going on.”

The prosecutor read Exhibit A when she received it during the hearing and noted the information it contained had not previously been known by her. After the hearing, the prosecution located a police report regarding the incident described by J. During the incident H. was three years old.

Defense counsel followed up by having its investigator speak with J. on June 1, 2016. In reply to the prosecution’s opposition to the motion to withdraw the plea, defense counsel summarized that during the interview J. reiterated he had been falsely accused by H. of sexually molesting her. The summary further states that J. “also believes, based on his knowledge of their character, that [H.’s mother] has completely brainwashed [H.] to the point that making an accusation of molestation would be insignificant. [J.] believes that, based on his knowledge of their character, that [H.’s mother] likely influenced [H.] into making this accusation against [defendant] for her own financial gain. [J.] is aware that [H.’s mother] could make financial gains if [defendant] were sentenced to state prison for a significant period of time. [J.] is aware that [H.’s mother] believes she is more likely to gain money from an inheritance if [defendant] is convicted of having molested [H.]”

On June 17, 2016, the trial court denied the motion to withdraw the plea.

DISCUSSION

Defendant argues his trial attorneys and the trial court committed various errors that require reversal of the trial court’s denial of his motion to withdraw his plea. We conclude defendant has not met his burden to demonstrate prejudice.

A.

Defendant’s Burden in Moving to Withdraw a Plea

Section 1018 provides in pertinent part: “On application of the defendant at any time before judgment . . . the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.” Good cause requires the defendant to show he pleaded guilty because of mistake, ignorance any other factor that overcame his exercise of free judgment. (People v. Weaver (2004) 118 Cal.App.4th 131, 145 (Weaver).) Alternatively, the defendant may show other factors overcoming his free judgment, including inadvertence, fraud or duress. (Ibid.)

“ ‘ The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.’ (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) [¶] ‘When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]’ (People v. Shaw, supra, 64 Cal.App.4th at pp. 495-496.) ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ (People v. Hunt [(1985)] 174 Cal.App.3d at p. 103.)” (Weaver, supra, 118 Cal.App.4th at pp. 145-146.)

B.

The Negotiated Plea

During the plea colloquy, defendant stated he had gone over the plea form with his trial attorney and that he understood it. Defendant confirmed he “would receive no less than 20 years but not more than 30 years in state prison.” Defendant affirmed he was admitting a substantial sexual conduct enhancement under section 1203.066. He stated he understood he would have to serve at least 85 percent of his total prison term before being released on parole. In response to questioning by the trial court, defendant understood he was waiving rights including those to a jury trial. The colloquy included the following exchange about the terms of the plea:

“THE COURT: Okay. Not necessarily always what you want to do, but sometimes it’s in your best interest, I suppose.

“THE DEFENDANT: That’s where I’m going. Yes, Sir.

“THE COURT: Sometimes it helps to put it that way.

“THE DEFENDANT: Okay. Yes. That’s what I mean.”

After the trial court was satisfied defendant was voluntarily entering a negotiated plea, defendant pleaded guilty to committing the following crimes against L.: one forcible lewd act on a child under the age of 14 years, 9 lewd acts on a child under the age of 14 years, and one penetration with a foreign object of a child under 14 years and at least 10 years younger than defendant (§ 289, subd. (j)). Defendant pleaded no contest to committing the following crime against H.: one lewd act on a child of 14 or 15 years and at least 10 years younger than defendant. He also admitted the acts constituted substantial sexual conduct. (§ 1203.066, subd. (a).)

In exchange for his guilty pleas to offenses against L. and no contest to a single offense against H., more than 30 charges involving L. were dismissed. Among the dismissed charges were three counts of forcible oral copulation. At the time of his offenses, forcible oral copulation under section 288a, subdivision (c)(2), exposed defendant to a prison term of three, six, or eight years for each count of conviction. (Former § 288a, subd. (c) (2); Stats. 2002, ch. 302, § 4.) Under section 667.6, subdivisions (d) and (e)(7), the trial court could have imposed full consecutive terms of eight years for each of these offenses that were alleged to have occurred on separate occasions. Consecutive sentences on each of these three charges, by themselves, were nearly equivalent to the sentence defendant received under the negotiated plea.

Defendant also faced an additional 42 counts of violating section 288, subdivision (a), for lewd or lascivious touchings of L. while she had been under the age of 14 years. At the time, section 288, subdivision (a), was punishable by three, six, or eight years in state prison. (Former § 288; Stats. 2004, ch. 823, § 7.) These offenses, if proven, could have been sentenced consecutively because defendant was alleged to have molested L. once a month over the course of three years. (People v. Shaw (1986) 182 Cal.App.3d 945, 947.) Even at one third of the middle term, the section 288, subdivision (a), convictions would have added more than 80 years to his sentence. In other words, defendant could have served more than 100 years in state prison on the charges against L. alone. As the prosecutor in the case noted, “for one victim [L.] alone [defendant] was facing close to 100 years, 100 years at 85 percent for one victim alone because of the number of acts that are charged.”

At the time of the plea, defendant faced an unfavorable case even when the charged offenses against H. are ignored. Defendant’s trial attorney at the time, Jeremy West, would later state during a Marsden hearing that the evidence suggested defendant committed many more lewd touchings on L. than were charged. West referenced “the initial report which could have been construed as 100 times or more.”

The prosecution could have moved to amend the information to conform to proof defendant sexually molested L. more than 100 times. (People v. Jones (1985) 164 Cal.App.3d 1173, 1178 [“Amendment of an information at trial to state offenses established at the preliminary hearing or even during trial is proper as long as the defendant’s substantial rights are not compromised”].) During the preliminary hearing, the investigating officer testified that L. reported defendant molested her “every night or every other night” over the course of three years. She also specifically recalled that defendant would pick her up from school “every Friday” and “he would take her home and then molest her.” This evidence supported amendment to conform to proof of many more violations of section 288 than were charged.

During defendant’s interview with the police, he admitted that “he touched his daughter’s genitals approximately three to five times over the course of two years.” The police report further indicates defendant’s wife “knew about the abuse because her husband disclosed it to her.” The report also noted L. confided in her friend about the molestations more than a year before she reported them to her school counselor. And the police report states L. reported the molestations to her brother when she was 12 years old.

West’s strategy at trial was to attempt to reduce the number of convictions by relying on a partial recantation of L. in one of her interviews. After twice telling the police that defendant regularly molested her at least once a week over the course of three years, L. later recanted to state she had only been molested approximately 10 times. As West explained during the Marsden hearing, defendant “was looking at a significant amount of time even if the recant version of [L.’s] testimony or report was that it happened 10 times.” West recognized, however, “[defendant] was likely to be convicted of more than that because of the” fact that when L. recanted “she didn’t say it didn’t happen at all.” Thus, West thought defendant’s best outcome at trial would be convictions resulting in “[a]pproximately 16 years” in prison.

C.

Preservation of the Issue for Appeal

The Attorney General argues defendant “failed to comply with the requirements of . . . section 1018 that any motion to withdraw a plea must be personally made by the defendant in open court.” We reject the contention.

In pertinent part, section 1018 requires that “every plea shall be entered or withdrawn by the defendant himself or herself in open court.” The Attorney General argues defendant’s statements during the Marsden hearing did not qualify as being made “in open court.” The Attorney General’s argument comes with an acknowledgment that “[r]espondent does not have a transcript of the confidential hearings.” Our review of the docket shows the Attorney General did not make an application to view the Marsden transcript or make any other showing of due diligence in attempting to secure a copy of the transcript. (But see Cal. Rules of Court, rule 8.47(b)(2) [providing that “if the defendant raises a Marsden issue or an issue related to another in-camera hearing covered by this rule in a brief, petition, or other filing in the reviewing court” the Attorney General “may serve and file an application requesting a copy of the reporter’s transcript of, and documents filed or lodged by a defendant in connection with, the in-camera hearing”].)

In any event, we reject the proposition that a defendant is prevented from seeking to withdraw his or her plea during a Marsden hearing. On this point, we heed the guidance of the California Supreme Court in People v. Smith (1993) 6 Cal.4th 684, 693 (Smith). In reviewing a motion for new trial, the Smith court noted a Marsden hearing may be the proper procedural vehicle by which a defendant may pursue a desire to withdraw a guilty plea by seeking the appointment of counsel to assist in bringing the motion to withdraw. (Id. at p. 693.) Smith states: “ ‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. (People v. Stewart (1985) 171 Cal.App.3d 388, 395; see People v. Marsden (1970) 2 Cal.3d 118, 123.) If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. (People v. Stewart, supra, 171 Cal.App.3d at p. 396.) If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. (Ibid; see People v. Marsden, supra, 2 Cal.3d at p. 123.)’ (People v. Diaz (1992) 3 Cal.4th 495, 573-574.)” (Smith, supra, at p. 693.)

Here, defendant complied with the procedure outlined by the Smith court by moving for a Marsden hearing. During the Marsden hearing, defendant articulated his reasons why he had received pre-plea ineffective assistance of counsel. Defendant also explained he requested that West move to withdraw the plea but West refused to do so. During the hearing, defendant informed the court he contacted West because he “wanted to withdraw [his] plea because [he] d[idn’t] want to plead guilty to charges [he] didn’t commit.” Defendant made clear that he wanted to withdraw his plea and to have the assistance of counsel in doing so. Specifically, defendant stated: “Yes, it’s my desire to withdraw my plea.”

Even if defendant’s clear expression of his desire to move to withdraw his plea had not sufficed during the Marsden hearing, he clearly adopted the motion to withdraw the plea that was filed on his behalf. Defendant retained counsel for the very purpose of bringing a motion to withdraw his plea. Defendant participated during the trial court’s extensive consideration of his motion to withdraw the plea. During one of the hearings on the motion to withdraw the plea, defendant testified that if had he known about the investigative report involving J. before he entered his plea he would not have agreed to the negotiated plea.

“[C]ompliance with . . . section 1018 requires that a defendant make some expression in open court which authorizes or adopts a motion made on his [or her] behalf to withdraw his [or her] plea.” (Johnson v. Superior Court (1981) 121 Cal.App.3d 115, 119, italics added.) We conclude defendant’s hiring of counsel to prepare a motion to withdraw the plea and his multiple appearances at the hearings were sufficient to satisfy section 1018. The challenge to the denial of the motion to withdraw the plea has been preserved for appellate review.

D.

Defendant’s Motion

The theory advanced by defendant’s trial attorney on the motion to withdraw the plea, Borges, was that potentially exculpatory evidence relating only to the credibility of victim H. warranted setting aside the plea. The trial court denied defendant’s motion to withdraw based on its conclusion the report relating to J.’s doubts about H.’s veracity “constituted evidence that objectively would never be allowed to be presented at a jury trial” under Evidence Code section 352. In support of this conclusion, the trial court noted the evidence was 24 years old and was comprised of “unsubstantiated and uncorroborated hearsay.”

As pertinent to the analysis in this appeal, the trial court reasoned: “If the defendant were allowed to withdraw his plea, and even if the prosecution chose to dismiss the allegations involving [H.], the [defendant] would likely be convicted of multiple charges due to his admissions regarding molesting [L.] The prison exposure for the allegations involving [L.] alone are high, so the defendant greatly risks a greater sentence at trial than he will receive as a result of his plea.” The trial court noted defendant faced a “lifetime exposure potentially . . . even if the D.A. dismissed as to the second victim . . . .” In short, the motion to withdraw provided no grounds for reducing defendant’s exposure to a very long prison sentence for the multiple molestations of the primary victim, L.

E.

Disclosure of the First Investigative Report to the Prosecution

Defendant argues his first trial attorney, John Kucera, was ineffective because he disclosed to the prosecution the first of two reports of interviews with L. by investigator Jason Moore prepared on behalf of the defense. Disclosure of the report relating to the first interview with L. revealed the existence of the second victim, H. However, the second interview did not mention H. Instead, Moore’s second report recounted that a subsequent interview with L. involved L.’s partial recant of her initial allegations. This second interview, in which L. professed to “clear some things up about her father threatening to kill her and how many times things happened” had exculpatory value.

The Attorney General responds that Kucera had a rational tactical reason for disclosing the report because “[t]he statements showed that the victim wanted the case dropped and the victim was recanting some of her prior statements.” The Attorney General’s argument conflates the separate investigative reports by Moore and relates only to Moore’s second report.

Defense counsel could have disclosed only the second investigative report to the prosecution, but instead disclosed the first report that revealed an additional victim. The record does not disclose a rational tactical decision by defendant’s first trial attorney in disclosing to the prosecution the existence of a victim previously unknown to the prosecution. However, even if Kucera was ineffective in disclosing the report that brought the existence of victim H. to light, the deficiency was not prejudicial.

Under the Sixth Amendment, all criminal defendants have a constitutional right to competent legal representation. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Smith (1993) 6 Cal.4th 684, 690 (Smith).) “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Strickland [v. Washington (1984) 466 U.S. 668,] 687–688, 693 [(Strickland)]; [People v.] Ledesma [(1987) 43 Cal.3d 171,] 216 [(Ledesma)].) Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland, at pp. 687–688.) Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (Id. at pp. 693–694.)” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)

As we have explained above in part I B., defendant’s exposure to prison was greater than a century just on the charges involving L. The trial court informed the defendant that going to trial on the allegations of L. brought “lifetime exposure.” Defendant’s actual sentence of 23 years 4 months in prison constitutes a small fraction of the maximum sentence he faced even if the charges involving H. are ignored. Defendant’s negotiated plea was a very favorable deal even when considering only the charges involving L. Kucera’s inadvertent disclosure of Moore’s first investigative report was harmless because defendant could not have expected an even more lenient deal with the nearly 50 charges he faced for his acts against his daughter.

Defendant asserts his exposure to prison for crimes against L. was much lower – being limited only to the three to five molestations he admitted to the police. We reject the assertion. Sexual assault victims frequently recant charges for which the perpetrators are subsequently convicted. (E.g., People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Housley (1992) 6 Cal.App.4th 947, 956; see also In re S.A. (2010) 182 Cal.App.4th 1128, 1148.) Moreover, West, defendant’s trial attorney at the time of the plea was well aware of L.’s partial recantation. Nonetheless, West expected going to trial would mean defendant would be convicted on more counts even with L.’s recanted version. As West noted, L. never recanted all of her accusations.

Defense counsel’s evaluation of the case during the Marsden motion showed the reality that defendant faced a very long prison sentence for many convictions of offenses against L. regardless of her recantation. Defendant’s assertion he wanted the facts to come to light regarding his denials of molesting H. would have run the risk of going to trial on all of the charges regarding L. Moreover, the prosecution could have moved to amend the information to conform to proof by adding many more charges involving victim, L. On this record, we conclude the disclosure of Moore’s first report constituted ineffective assistance that was harmless when viewing the case as a whole at the time of defendant’s plea.

F.

Withholding Investigative Report Relating to J.

Defendant next argues his trial attorney, West, provided him with ineffective assistance of counsel for not disclosing to him the investigative report regarding statements made by J. Defendant asserts that “the investigative report was exactly the type of information that [he] would have been seeking to undermine the credibility of [H.] and give an explanation as to why she would have falsely accused [him] of molesting her.” Although West should have provided defendant with the investigative report prior to defendant’s plea, the deficiency is harmless for the same reasons as stated in part I E., above.

During a hearing on the motion to withdraw, the courtroom was cleared to exclude members of the press and the prosecution. Defendant’s newly retained counsel called West to testify. West stated that, as he prepared for trial, he was aware H. and her mother had a reputation for being untruthful. However, West forgot about the report in which J. related his experience with being falsely accused by H. Thus, West did not disclose the report regarding J. to defendant before he entered his plea. In the same hearing, defendant testified that if he had known about the report relating to J., he would not have entered into the plea agreement. None of the witnesses during the hearing were subject to cross-examination.

Defendant’s motion to withdraw the plea, however, noted L.’s statements already cast doubt on H.’s veracity. According to defendant’s motion, L. “informed [Moore] that she witnessed nothing like what alleged victim [H.] reported.” The defense was aware that no evidence corroborated H.’s allegation against defendant. And defendant himself would know the truth of the allegations involving H. In other words, arguable weaknesses of H.’s accusations were well known to the defense before defendant entered into his negotiated plea.

The report relating to J. confirmed what the defendant and defense counsel already knew: H.’s accusation against defendant was uncorroborated and subject to questions about her veracity. Ultimately, the report relating to J. was properly described by the trial court as “uncorroborated and highly speculative,” and therefore inadmissible. This inadmissible evidence does not suffice to satisfy defendant’s burden to prove the negotiated plea was entered into on grounds of mistake, ignorance or another factor that overcame his exercise of free judgment. (Weaver, supra, 118 Cal.App.4th at p. 145.)

For the same reasons, we conclude any deficiency by West in failing to further investigate J.’s statements regarding H. were nonprejudicial. The many charges against defendant for his molestations of L. threatened such a long prison sentence that defendant could not have reasonably expected the elimination of the two nonforcible charges involving H. to result in a better negotiated plea than he entered. Defendant’s negotiated plea – and actual sentence – represented only a fraction of the sentence he faced in going to trial only on the charges involving L. He faced going to trial after having admitted molesting L. and with L.’s recantation still involving at least 10 molestations. In short, defendant’s prison exposure remained great regardless of whether charges against H. were included.

G.

Prosecution Access to Investigator’s Report Regarding J.’s Statements

Defendant next argues the trial court committed reversible error in disclosing the report relating to J. to the prosecution. In defendant’s view, the trial court was required to both keep the report sealed and grant his motion to withdraw his plea. The Attorney General counters that the prosecution had a due process right to the report on which the motion to withdraw the plea was premised.

As we explained in part I F., above, the investigative report relating to J. contained uncorroborated statements about H.’s veracity that the trial court determined would be inadmissible at trial. The events recounted in the report were nearly a quarter century old. And the issues regarding the questionability of H.’s veracity was already known to defense counsel and defendant before the entry of the negotiated plea. The disclosure of the report to the prosecution did not undermine defendant’s motion to withdraw the plea, but allowed the prosecution to respond adequately during the hearing on the motion. It is well settled that the prosecution is entitled to due process of law just as is a criminal defendant. (Cal. Const., art. I, § 29; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1044.) Thus, due process compelled disclosure of the report to the prosecution as part of the People’s right to effectively be heard.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MAURO, J.