Filed 1/14/20 P. v. Pham CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW PHAM,

Defendant and Appellant.

G056926

(Super. Ct. No. 17WF2775)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John R. Zitny, Judge. Affirmed.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

After obtaining a certificate of probable cause, Andrew Pham filed this appeal from the judgment of conviction following his guilty plea to gang-related attempted murder, street terrorism, and conspiracy. Pham argues we should reverse the judgment and allow him to withdraw his plea based on allegations his counsel provided constitutionally deficient advice that convinced him to plead guilty. Specifically, Pham contends counsel misadvised him on the length of time he would have to serve in prison before being eligible for parole.

We conclude Pham failed to prove the prejudice prong of his ineffective assistance of counsel claim. Consequently, we affirm.

I

BACKGROUND

As part of a negotiated plea agreement, Pham admitted to being an active member of the Dragon Family criminal street gang. Along with four other Dragon Family gang members and one associate gang member, Pham chased John Doe through a restaurant and into its parking lot. One of the gang members, Brian Nguyen, fired a gun at John Doe, who fled across the street and into a McDonald’s. The group drove to the McDonald’s and surrounded the restaurant.

Jane Doe drove into the McDonald’s parking lot and John Doe dashed to her car, climbing inside. Nguyen shot at both victims multiple times. Pham participated in the shootings for the benefit of, at the direction of, and in association with the Dragon Family criminal street gang.

Under the plea deal, Pham pleaded guilty to two counts of attempted murder (§§ 664, subd. (a), 187, subd. (a)), and one count each of street terrorism (§ 186.22, subd. (a)) and criminal street gang conspiracy (§ 182.5). He also admitted enhancement allegations for gang member vicarious use and discharge of a firearm under to section 12022.53, subdivisions (b), (c) and (e)(1) and within the meaning of sections 1192.7 and 667.5. The trial court sentenced Pham to the aggregate prison term of 20 years.

Nearly 60 days after entry of judgment, Pham filed a notice of appeal and accompanying request for a certificate of probable cause. In the latter document, Pham made the following assertion: “I would like to withdraw my plea because when I was signing my plea deal my lawyer told me I was signing and going to serve 80 [percent] of my time. The next day after I sign [sic] my deal my lawyer informed me that he made a mistake and I was gonna serve 85 [percent] of my time. I don’t think this is right because I sign [sic] a plea because I thought I was gonna serve 80 [percent] but in reality I have to serve 85 [percent] of my time.”

The trial court granted the certificate of probable cause.

II

DISCUSSION

Pham argues he is entitled to reversal of the judgment and the opportunity to withdraw his guilty plea because he received constitutionally deficient representation. Specifically, Pham contends his attorney erroneously told him he would serve only 80 percent of the prison term, while the law required Pham to serve a minimum of 85 percent of that term. Moreover, Pham asserts he would not have pleaded guilty had counsel accurately advised him of the length of the prison term he would have to serve.

Before addressing the merits, we note the Attorney General argues two grounds for finding the appeal procedurally barred. Neither is persuasive. First, the Attorney General contends that as part of the plea deal, Pham expressly waived his right to appeal the plea and the judgment. Case law holds, however, a defendant cannot waive a claim of ineffective assistance that led to the defendant to agree to the plea agreement. (See People v. Orozco (2010) 180 Cal.App.4th 1279, 1285 [“justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness”].)

Second, the Attorney General contends Pham forfeited his ineffective assistance claim by failing to bring a motion to withdraw his plea in the trial court. Under section 1018, a trial court may permit a defendant to withdraw a guilty plea upon good cause shown “at any time before judgment[.]” (§ 1018, italics added.) The Attorney General acknowledges the court entered judgment immediately after Pham pleaded guilty. Thus, for Pham there was no “before” –– no period between plea and judgment –– during which Pham could have brought a section 1018 motion to withdraw the plea. (Cf. People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413 [forfeiture found where defendant knew “of the circumstances that allegedly caused his plea to be involuntary some two days after entry of the plea and well before judgment”]; People v Barajas (1972) 26 Cal.App.3d 932, 937 [forfeiture found where defendant “had the time and opportunity” to challenge plea but opted not to do so].) Nevertheless, the Attorney General argues the fact Pham waited nearly 60 days after entry of plea and judgment “to file an appeal asking to withdraw that plea, certainly demonstrates a sufficient delay” to support a forfeiture finding. We disagree. Pham did not forfeit his right to appeal on these facts.

Though Pham’s appeal is not procedurally barred, he loses on the merits. To prevail on a claim of ineffective assistance, a defendant must prove counsel’s representation fell below an objective standard of reasonableness, as judged by “prevailing professional norms,” and the deficiencies in counsel’s performance were “prejudicial to the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 692 (Strickland).) Pham’s claim of ineffective assistance fails because he does not satisfy the prejudice prong of the Strickland test.

Proving prejudice from ineffective assistance related to a guilty plea requires a defendant to show “a reasonable probability exists that, but for counsel’s incompetence, [defendant] would not have pled guilty and would have insisted, instead, on proceeding to trial.” (In re Resendiz (2001) 25 Cal.4th 230, 253 (Resendiz), [abrogated in part on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370; People v. Breslin (2012) 205 Cal.App.4th 1409, 1418-1419.) To upset a plea, more is required than “post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” (Lee v. United States (2017) __ U.S. __ [137 S.Ct. 1958, 1967] (Lee); see Resendiz, supra, 25 Cal.4th at p. 253 [“petitioner’s assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence’”].)

Pham utterly fails to meet this evidentiary burden. Although Pham asserts “the record reflects [he] would not have entered his plea if he had been correctly advised,” he does not point to any such evidence. Pham’s only supporting record citation is to his request for the probable cause certificate. That request consisted of a mere three-sentence explanation for why Pham wanted to withdraw his guilty plea. It stated Pham’s attorney admitted erroneously advising him on the actual prison time required under the deal, and Pham had “signed” the deal “because I thought I was gonna serve 80 [percent] but in reality I have to serve 85 [percent] of my time.” Although the statement complains of unfairness (“I don’t think this is right”), it does not say Pham would have rejected the plea deal had he known he would have to serve 85 percent of the sentence.

Obviously, Pham’s request for a probable cause certificate does not constitute the sort of “contemporaneous evidence” needed to show he is entitled to a reversal. (Lee, supra, at p. 1967). More strikingly, Pham does not even offer a plausible rationale for why he would have rejected the plea deal had he known he would have to serve 85 percent of his prison term rather than the promised 80 percent. The Attorney General explains why that rationale is difficult to muster.

According to the Attorney General, it comes down to simple math: 85 percent of Pham’s agreed sentence is 17 years, while 80 percent of the sentence is 16 years. The Attorney General aptly argues it is “highly unlikely” Pham would have rejected the plea bargain “based on that one-year difference,” given he would have risked a potential maximum sentence of 47 years, 8 months in prison if he went to trial –– “more than double the time he received” under the plea deal.

We conclude Pham failed to prove his claim of ineffective assistance of counsel in connection with his guilty plea. His bare assertion of prejudice, without any evidentiary support, is insufficient to meet his burden of proof under Strickland, supra, 466 U.S. 668.

 

III

DISPOSITION

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.