People v. Hamburg CA2/6 ( 2021 )

Filed 6/21/21 P. v. Hamburg CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306594
(Super. Ct. No. 19F-08079)
Plaintiff and Respondent, (San Luis Obispo County)
v.
BRYAN STERLING
HAMBURG,
Defendant and Appellant.
Bryan Sterling Hamburg appeals the denial of his motions
to withdraw his no contest plea (Pen. Code, § 1018)1 to the crime
of receiving stolen property (§ 496, subd. (a)), a felony. He was
sentenced to 16 months in county jail. We conclude, among other
things, that Hamburg has not shown the trial court erred by
denying his motions. We affirm.
1 All statutory references are to the Penal Code.
FACTS
On October 4, 2019, police received a call about a burglary
at Glenn’s Repair shop. Someone had cut through a fence,
removed a portable generator and gasoline from two
lawnmowers. Surveillance video recorded the theft. It showed a
male, wearing a mask, a hoodie, pants and boots, “siphoning gas”
from the lawnmowers. Police found “boot prints” near the fence.
That same morning police were dispatched involving a call
about another burglary at Solarponics. A “van had been broken
into” and several “Milwaukee power tools” were missing. A glass
door on the van had been shattered. Surveillance video from a
nearby business showed a “mid 90s Ford Thunderbird” had
pulled into the back lot and a driver who got out of the vehicle
was wearing the same clothing as the suspect at the burglary at
Glenn’s Repair.
That same day near that scene, police saw Hamburg inside
a Ford Thunderbird. Hamburg got out of the vehicle and started
to walk away. He told a police officer that he was going to a
friend’s house. A police officer looked inside that vehicle and saw
“Milwaukee tools.” A parole agent told police that the
Thunderbird belonged to Hamburg. He said he knew that
because he saw Hamburg in that vehicle. Milwaukee power tools
were in the Thunderbird. There was also a “rescue tool”
containing a “window punch feature” that is used to “shatter
windows,” a “seatbelt cutter,” and a pair of bolt cutters.
The boots Hamburg was wearing had “identical patterns”
to the boot prints found at Glenn’s Repair. The owner of the tools
found in the Thunderbird identified them as the ones taken from
his van. The stolen tools were worth more than $1,000.
2
On November 21, 2019, the People filed an information
alleging Hamburg committed second degree burglary of a vehicle
(§ 459), a felony (count 1); receiving stolen property (§ 496, subd.
(a)), a felony (count 2); vandalism (§ 594, subd. (b)(2)(A)), a
misdemeanor (count 3); petty theft (§ 484, subd. (a)), a
misdemeanor (count 4); prowling (§ 647, subd. (h)), a
misdemeanor (count 5); prowling (ibid.) (count 6); and possession
of burglar tools (§ 466), a misdemeanor (count 7).
Pursuant to a plea agreement, Hamburg agreed to plead no
contest to count 2 and the other six counts would be dismissed.
The January 9, 2020, Hearing
At the hearing, before Hamburg pled no contest, the trial
court advised him that the plea would involve the waiver of
various constitutional rights including his right to a jury trial.
During the hearing Hamburg said: “I have a question . . . I
was here on interstate compact from Arizona, and would this
mean it would be a probation violation there and I could get
sentenced over there, too, after I’m done doing this sentence?”
The court: “I’m not sure.”
Hamburg: “Because if that’s the possibility, then I’d want
to take it to trial, I’m not going to risk going and doing six years
in prison for me pleading, you know. That would be like double
jeopardy to me, but that’s how I feel about it, you know.”
The court: “Ms. Sutton-Buckley [Defense Counsel], do you
want to address that?”
Defense counsel: “I’ll have to talk to him about it.”
The prosecutor: “Your Honor, I know that there was no
violation filed here that we can’t do that because of the interstate,
but . . . I think [defense counsel] would have to contact Arizona to
find out.”
3
The court: “That’s a good question to ask.”
Hamburg: “I haven’t been in touch with them in three
years, you know, because I’ve been supervised here.”
At this point the proceedings stopped so that Hamburg and
his counsel could confer. After this conference, the court
proceedings continued and the trial court asked: “So, Ms. Sutton-
Buckley [Defense Counsel], will you look into that issue? Can
you look into that issue before we come back on the 23rd?”
Defense counsel: “Yeah, I will, Your Honor. He
understands.”
Hamburg: “I understand.”
The court: “And Mr. Hamburg, you need to understand I
don’t know anything about that other case . . . . Other than what
we’ve talked about here in open court, has anyone made any
promises to you or someone you care about in order for you to
enter into your plea?” (Italics added.)
Hamburg: “No.”
The court: “Counsel stipulate to a factual basis for the
plea . . . .”
Defense counsel: “Yes, Your Honor.”
Prosecutor: “Yes.”
The court: “Mr. Hamburg, understanding your possible
rights – your defenses, as well as the possible consequences of
your plea . . . , . . . how do you plead to count 2, a felony, [section]
496 subdivision (a), receiving or purchasing stolen property?”
Hamburg: “No contest.”
The January 23rd Sentencing Hearing
The trial court noted that there was a “negotiated
disposition” so that Hamburg would be sentenced to “the lower
4
base term of 16 months county jail/prison.” At this hearing no
mention was made about the Arizona case.
The March 26, 2020, “Motion to Withdraw Plea”
Hamburg’s defense counsel filed a motion to withdraw his
no contest plea. She said she was “informed” that Hamburg
wanted to withdraw his plea “due to insufficient counsel.” She
requested new counsel be appointed for Hamburg.
The May 6, 2020, Motion to Withdraw Plea
Hamburg’s new counsel filed a motion to withdraw the plea
claiming good cause because “Arizona is seeking extradition”
based on that plea. He claimed Hamburg would not have entered
the plea had he been advised “Arizona would be seek[ing]
extradition.”
The People filed an opposition to the motion. They claimed,
among other things, that Hamburg did not “set forth a single
corroborative fact to support the contention that the plea was
involuntarily made or made under a mistake of fact.” They
noted, “[T]here is no evidence from [Hamburg’s] former attorney
to corroborate [his] claims.”
The trial court held several hearings. At those hearings
Hamburg did not testify, call any witnesses, or present evidence.
The court denied the motions. It ruled, among other things, that
Hamburg did not show “good cause” to set aside the plea. It said,
“[T]he purported case out of Arizona, it’s not before this court.”
The Arizona development was not a new fact. Hamburg “was
aware that he was on interstate compact out of Arizona. And, in
fact, he raised the issue at the plea hearing.” Hamburg “was
aware that there was a possibility of a probation violation in
Arizona, whether or not one had been filed as of that date.” The
5
court said it “has no ability to determine what a court in Arizona
will do.”
DISCUSSION
Denying the Section 1018 Motions to Withdraw Hamburg’s Plea
Hamburg contends the trial court erred by denying his
motions to withdraw his no contest plea.
The People respond that the trial court lacked jurisdiction
to grant the motions because they were made under section 1018.
Hamburg’s judgment of conviction was entered in January
2020. His motions to withdraw the plea were filed on March 26,
2020, and May 11, 2020. The motions were made pursuant to
section 1018. But they were made after the entry of judgment.
“[S]ection 1018 . . . only authorizes a trial court to allow a
defendant to withdraw a guilty plea before judgment is entered.”
(People v. Gari (2011) 199 Cal.App.4th 510, 521.) Section 1018
provides the court may grant the motion to withdraw the plea
“[o]n application of the defendant at any time before judgment.”
(Italics added.) Consequently, Hamburg has not shown error by
the court’s denial of these motions made under section 1018.
The People claim that even had Hamburg’s motions been
filed as “non-statutory” motions to withdraw his plea, the result
does not change. We agree. (People v. Kim (2009) 45 Cal.4th
1078, 1096 [“[A] nonstatutory motion to vacate has long been held
to be the legal equivalent of a petition for a writ of error coram
nobis”].) That usually involves the discovery of new evidence.
But “[t]o qualify as the basis for relief on coram nobis, newly
discovered facts must establish a basic flaw that would have
prevented rendition of the judgment.” (Id. at p. 1103.)
But whether it is a statutory or a non-statutory motion,
there must be a showing of good cause. Good cause for a motion
6
to vacate a plea “ ‘must be shown by clear and convincing
evidence.’ ” (People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
“Grant or denial of a motion lies within the trial court’s sound
discretion . . . .” (Ibid.) “Guilty pleas resulting from a bargain
should not be set aside lightly . . . .” (Ibid.) Consequently, an
appellant must meet a strong burden to establish a trial court’s
abuse of discretion in deciding not to set aside the plea. (Ibid.)
Court’s Duty to Advise on Collateral Consequences
Hamburg contends the trial court did not properly advise
him of the possible violation of his Arizona probation conditions
that could result if he entered the plea.
The People respond that the “trial court correctly concluded
[that] there was no duty to warn [Hamburg] about a potential
collateral consequence of his plea, such as the fact that it could
potentially trigger additional sanctions in his Arizona case.”
(Italics added.) They claim the court did not misadvise him about
the Arizona consequences. We agree.
The trial court has a duty to properly advise the defendant
about consequences of a conviction before taking a guilty or no
contest plea. “While an advisement is required for a direct
consequence, no advisement is required for ‘collateral’
consequences.” (Harris v. Appellate Division of Superior Court
(2017) 14 Cal.App.5th 142, 150.) “A ‘collateral’ or ‘indirect’
consequence is one that ‘does not “inexorably follow” from a
conviction of the offense involved in the plea.’ ” (Ibid.) “The rule
requiring advisement of direct consequences and not collateral
consequences is a judicially declared rule of state criminal
procedure.” (Ibid.)
The “collateral consequences for which no advisement need
be given prior to defendant entering a guilty or no contest plea”
7
include the “possibility that a guilty plea might result in a
revocation of probation and a prison sentence.” (Harris v.
Appellate Division of Superior Court, supra, 14 Cal.App.5th at
p. 150, fn. 5.)
Hamburg claims the trial court had a duty to properly
advise him about the impact of the conviction on his Arizona
conviction and Arizona probation status. But what the state of
Arizona might, or might not, do as result of this California
conviction was a collateral consequence that the court was not
required to provide advice about before accepting a plea. (Harris
v. Appellate Division of Superior Court, supra, 14 Cal.App.5th at
p. 150, fn. 5; People v. Martinez (1975) 46 Cal.App.3d 736, 745 [“a
subsequent revocation of probation is a ‘collateral’ rather than a
‘direct’ consequence of the guilty plea, and thus defendant need
not be advised of such consequences”]; People v. Searcie (1974) 37
Cal.App.3d 204, 212 [a collateral consequence includes
“possibility of affecting sentence in an independent state court
case”].
Did the Trial Court Mislead Hamburg Before He Pled?
Hamburg suggests the trial court misadvised, misled him,
or gave him a false sense of security, by failing to state that the
court “had no control over Arizona and whether his plea in this
case would trigger a violation of probation in Arizona.” He claims
the court “should have advised that he could go forward with the
plea or go to trial.”
“When the ground for withdrawing the guilty plea is the
omission of advisement of the consequences of the plea, the
defendant must show ignorance: that he was actually unaware of
the possible consequences of his plea.” (People v. Castaneda
(1995) 37 Cal.App.4th 1612, 1619.)
8
Here Hamburg certainly knew the potential for probation
violation problems in Arizona. As the prosecutor noted, Hamburg
“raised [the] issue himself,” showing “he was aware of the
possibility.” Moreover, the trial court did not mislead him about
the Arizona consequences. Instead, it candidly told Hamburg
about its lack of knowledge about the Arizona case.
Before making the plea, Hamburg said, “I have a question
. . . I was here on interstate compact from Arizona, and would
this mean it would be a probation violation there and I could get
sentenced over there, too, after I’m done doing this sentence?”
The trial court candidly responded, “I’m not sure.” It went
on to state, “Mr. Hamburg, you need to understand I don’t know
anything about that other case . . . .” (Italics added.)
The trial court consequently did not provide Hamburg with
any false sense of security about the consequences of this plea
relating to the Arizona case. Given the court’s answer, any
reasonable defendant would know the court could not give any
guarantee about what would happen in the Arizona case.
Knowing this, Hamburg, decided to plead no contest. He knew
the possibility of Arizona authorities initiating proceedings, and
may not have known “the degree of the risk” of that happening.
But gambling on the calculation of “the degree of the risk” is not
a ground to set aside the plea. (People v. Castaneda, supra, 37
Cal.App.4th at p. 1619.) Where the defendant knows the
circumstances, but in evaluating the known risk guessed wrong,
he does not show grounds for relief. (Ibid.; People v. Tidwell
(1946) 75 Cal.App.2d 476, 478.)
Hamburg also knew no promises had been made. The trial
court asked Hamburg, “Other than what we’ve talked about here
in open court, has anyone made any promises to you or someone
9
you care about in order for you to enter into your plea?”
Hamburg: “No.”
Hamburg’s trial counsel stipulated to a factual basis for the
plea.
The trial court asked Hamburg, “[U]nderstanding . . . the
possible consequences . . . , . . . how do you plead to count 2, a
felony, [section] 496 subdivision (a), receiving or purchasing
stolen property?” (Italics added.) Hamburg: “No contest.” The
court accepted the no contest plea after finding Hamburg “freely,
voluntarily, knowingly, and intelligently waived [his] rights.”
Hamburg has not shown error on this ground.
Ineffective Assistance of Counsel
Hamburg contends the trial court erred by denying the
motions to withdraw his plea based on ineffective assistance of
counsel. He claims his attorney failed in her duty to confirm
what would happen in the Arizona case.
“The pleading – and plea bargaining – stage of a criminal
proceeding is a critical stage in the criminal process at which a
defendant is entitled to the effective assistance of counsel . . . .”
(In re Alvernaz (1992) 2 Cal.4th 924, 933.) “Unless a defendant
establishes the contrary, [courts will] presume that ‘counsel’s
performance fell within the wide range of professional
competence . . . .’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674.)
To establish ineffective assistance, the defendant must meet two
prongs. The defendant must prove: 1) counsel’s performance was
deficient, and 2) this deficient performance caused prejudice to
the defendant’s case. (Strickland v. Washington (1984) 466 U.S.
668, 687.) A defendant’s self-serving statement is “insufficient in
and of itself to sustain the defendant’s burden of proof.” (In re
10
Alvernaz, supra, 2 Cal.4th at p. 938.) “[It] must be corroborated
independently by objective evidence.” (Ibid.)
The two motions Hamburg filed were procedurally
insufficient to meet his burden to show that his plea was the
result of ineffective assistance of counsel.
The first motion, filed in March 2020, did not contain any
declaration, or statement by Hamburg to support his ineffective
assistance claim. His counsel merely stated, “I am informed by
the defendant BRYAN STERLING HAMBURG that he wishes to
withdraw his plea to the above charge due to insufficient
counsel . . . .” (Italics added.) Such a conclusory hearsay
statement was insufficient to meet the required standard. (In re
Alvernaz, supra, 2 Cal.4th at p. 938.)
The second motion filed in May by different counsel was
five pages long and it was essentially only a set of points and
authorities. There was no declaration attached. No statement
was signed by Hamburg. There was only a conclusory hearsay
remark by his counsel in the motion that “Mr. Hamburg only
entered this plea because he understood that he would not face
additional sanctions in Arizona.” Counsel also said that “Arizona
is seeking extradition” and “[Hamburg] would not have entered a
plea if [he] had been advised that Arizona would be seek[ing]
extradition.”
But there was no factual showing about what his trial
counsel specifically did or said that constituted ineffective
assistance. (People v. Bolin (1998) 18 Cal.4th 297, 333 [“counsel’s
decisionmaking must be evaluated in the context of the available
facts”].) This motion did not contain any facts about 1) whether
his counsel contacted the Arizona authorities; 2) what, if
anything, those authorities told his counsel; 3) what his counsel
11
told Hamburg about the Arizona case; or 4) what his counsel
advised him to do. There was also a conference with his counsel
before Hamburg entered his plea. But there were no facts about
what happened at that conference or what advice was given.
The People objected to this motion claiming: 1) there was
no proof of good cause to withdraw the plea, 2) Hamburg has not
“set forth a single corroborative fact,” 3) there is “no evidence
from [Hamburg’s] former attorney to corroborate [his] claims,”
and 4) Hamburg has failed to attach “any documentation.” The
People added, “[They] have not received any information
regarding the violation of the Arizona case other than Arizona
attempting to extradite [Hamburg]. [T]here has been no evidence
presented that the plea in this case is the only basis for that
violation.”
The People claimed this motion was “subject to summary
dismissal.” “Solemn declarations in open court carry a strong
presumption of verity.” (Blackledge v. Allison (1977) 431 U.S. 63,
74.) “The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal . . . .”
(Ibid., italics added.) Here these two inchoate motions were
bereft of the required evidence or “specifics.” (Ibid.; In re
Alvernaz, supra, 2 Cal.4th at p. 938.)
The trial court could have, but did not, summarily dismiss
these motions. It held hearings. But at these hearings no
witnesses were called. Hamburg provided no testimony.
Hamburg’s trial counsel was not there. No declarations were
introduced. No evidence was presented.
During one of the hearings on this motion, Hamburg made
an unsworn remark that the prosecutor was the one who
promised there would be no Arizona consequences as a result of
12
his plea. He said, “I was promised by Ms. Chabra [the
prosecutor] that this wouldn’t happen and it happened.” But that
is not a claim of a promise made by his trial counsel.
Moreover, Hamburg’s claim that the prosecutor made a
promise that there would be no Arizona consequences for the plea
is not supported by the record. At the hearing before the plea
was entered, the prosecutor merely said, “I know that there was
no violation filed here [by Arizona].” But she also said that
Hamburg’s trial counsel “would have to contact Arizona to find
out.” Those statements do not support the claim of a promise
made to Hamburg. The prosecutor did not know what would
happen in the future which is why she suggested contacting the
Arizona authorities. Even Hamburg’s counsel at one of the
motion to vacate hearings said he did not believe that the
prosecutor had made the promise Hamburg had claimed.
Hamburg contends his counsel’s performance was deficient
because “competent counsel would have verified the information
with Arizona authorities before allowing him to enter a change of
plea.”
But this conclusion is based on a series of assumed, but
unproven facts. Hamburg did not present evidence about what
his counsel did. He did not call his trial counsel to testify or
explain her position. There was no showing about what
information was available to counsel from the Arizona authorities
at the time of his plea, at sentencing, or thereafter. There was no
evidence that the Arizona extradition request was related to his
plea in this case. There was no showing that the plea offer could
remain open for an extended indefinite period. Hamburg did not
produce evidence about what was agreed to, or understood, at the
unreported conference he had with his attorney at the January
13
9th hearing. Nor did he explain why he agreed to enter his plea
immediately after that conference.
Because of this undeveloped factual record, this claim of
deficient performance cannot be sustained. (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266-267.) Moreover, from the failure
to call his trial counsel, or present any evidence on the factual
issues highlighted above, the trial court could reasonably draw
negative inferences on the credibility of his claims. (Evid. Code,
§ 412; People v. Ochoa (1985) 165 Cal.App.3d 885, 888-889; People
v. Vaughn (1968) 262 Cal.App.2d 42, 55.)
Hamburg’s Showing of Prejudice
Hamburg has not shown deficient performance of counsel,
but even had he made such a showing, the trial court could
reasonably find he did not show prejudice.
Hamburg contends the trial court erred because he proved
he would not have agreed to the plea bargain had he been
advised of the Arizona consequences.
But this claim is “a factual question for the trial court.”
(People v. Araujo (2016) 243 Cal.App.4th 759, 763.) “It is up to
the trial court to determine whether the defendant’s assertion is
credible . . . .” (People v. Martinez (2013) 57 Cal.4th 555, 565.) A
defendant who is “highly likely to lose at trial” and “facing such
long odds will rarely be able to show prejudice from accepting a
guilty plea that offers him a better resolution than would be
likely after trial.” (Lee v. United States (2017) _ U.S. _ [198
L.Ed.2d 476, 486].) Moreover, a defendant will not prevail where
he or she failed to present corroborating “contemporary evidence
to substantiate” his or her “post hoc assertions” about how
differently he or she would have pled. (Id. at p. _ [id. at p. 487].)
14
Here the trial court could reasonably find Hamburg’s claim
about not accepting the plea bargain and taking the case to trial
had he known the Arizona consequences was not credible. The
court’s statements before accepting Hamburg’s plea show that
there was no assurance that there would not be negative Arizona
consequences for making the plea.
In denying his motions, the trial court found before making
the plea Hamburg said, “[N]o one had made any promises to him
or a loved one in order for him to plea no contest.” (Italics added.)
Knowing the potential consequences, Hamburg still decided to
plead no contest. The trial court found, “Hamburg confirmed that
he pled no contest, having understood his rights, defenses, and
the possible consequences of his plea.”
There was also no corroborating evidence to show that the
subsequent Arizona extradition request was related to, or the
result of, Hamburg’s plea in this case. At one of the hearings on
the motion to vacate, Hamburg’s counsel conceded that the
defense had no evidence to show that the Arizona request was
related to Hamburg’s plea. He said, “I think common sense says
it was the plea and the conviction, but this idea is speculation
because we don’t know . . . .” (Italics added.) But it is the
defendant’s burden to present the corroborating evidence, not
speculation. In denying his motions, the trial court highlighted
Hamburg’s failure of proof on this critical issue by stating, ”[A]s
of today, the court still does not know if there is a pending
supervision violation in Arizona.” (Italics added.)
Hamburg’s claim on appeal that his counsel’s deficient
performance caused prejudice is undermined by his statement at
the hearing that he relied to his detriment on the prosecutor’s
15
promise. In making that claim at the hearing, he did not
mention any reliance on a promise by his trial counsel.
Moreover, the trial court could also reasonably reject the
credibility of Hamburg’s claim that he would have gone to trial
instead of the plea bargain. The plea bargain was very favorable
to Hamburg. He was charged with seven counts including felony
burglary. As a result of the plea bargain, six counts were
dismissed. Because of the plea agreement, he received the low
term for his felony conviction. In his motions Hamburg made no
showing of defenses to the seven counts if they were taken to
trial. The People had strong evidence, including video
surveillance footage, boot prints matching his boots, the stolen
tools in the Ford Thunderbird, Hamburg’s presence near the
scene, his connection to the Thunderbird and the burglary tools
in that car. For a conviction on seven counts, Hamburg could
face a significantly longer period of incarceration. The probation
report listed four factors in sentencing “aggravation,” including
his prior convictions and adjudications and his poor performance
on parole/probation. He had a criminal record in two states. As
to factors in sentencing “mitigation,” the probation report listed
that there were “[n]one.”
The trial court did not abuse its discretion in deciding not
to set aside the plea.
DISPOSITION
The order denying Hamburg’s motions is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. TANGEMAN, J.
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Hernaldo J. Baltodano, Judge
Superior Court County of San Luis Obispo
______________________________
Susan B. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
17