People v. Montelongo CA4/1 ( 2013 )


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  • Filed 11/27/13 P. v. Montelongo CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                         D063233
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. SCN301334)
    ROBERT CANO MONTELONGO,
    Defendant and Appellant.
    APPEAL from a judgment and order of the Superior Court of San Diego County,
    Harry M. Elias, Judge. Affirmed.
    Sean F. Leslie for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew
    Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
    In exchange for what the guilty plea form indicated was a stipulated prison
    sentence of 15 years to life plus 10 years, Robert Cano Montelongo pleaded guilty to the
    murder of Stephen Board in violation of Penal Code section 187, subdivision (a)
    (undesignated statutory references will be to the Penal Code), and admitted a gun use
    enhancement allegation (§ 12022.53, subd. (b)).1
    After new counsel was appointed to represent him, Montelongo filed an opposed
    motion to withdraw both his guilty plea and his admission of the gun use allegation based
    on his claim that his former counsel hurried him into accepting the plea bargain and, as a
    consequence, he mistakenly believed he would be sentenced to a state prison term of 15
    years, not a life term. Following a hearing, the court denied the motion. The court then
    sentenced Montelongo to a state prison term of 15 years to life for the murder conviction
    plus 10 years for the gun use enhancement.
    On appeal Montelongo challenges the order denying his motion to withdraw his
    guilty plea and his admission of the gun use allegation, contending (1) the court erred in
    denying his motion because his plea was involuntary and the product of duress, and (2)
    his former attorney rendered prejudicially ineffective assistance of counsel. For reasons
    we shall explain, we reject these contentions and affirm the order and judgment.
    1      One of Montelongo's two codefendants, Benjamin Soria, pleaded guilty to one
    count of voluntary manslaughter; and admitted allegations that he committed the crime to
    further criminal conduct by gang members, and that he was vicariously armed with a
    firearm. He was sentenced to a state prison term of seven years eight months.
    Montelongo's other codefendant, Eulise Solano, pleaded guilty to the same charges and
    agreed to testify against Montelongo.
    2
    FACTUAL BACKGROUND2
    On January 2, 2012, in the late afternoon, police were called to an Oceanside
    house where they found Stephen Board, a documented member of the Crook Mob
    Gangster Crips gang, dead from a single gunshot to the back of his head. The area where
    Board was killed was known to be claimed by Varrio Mesa Locos, a Hispanic gang who
    had a long-standing rivalry with Black gang members.
    Witnesses reported observing four "Mexicans" walking towards Board and asking
    him, "What's up fool?" Board yelled, "Oh shit he got a pistol," and then ran in an attempt
    to escape. Board was then shot in the back of his head.
    A police investigation identified Montelongo, Solano, and Soria─all members of
    the Varrio Mesa Locos gang as suspects in the shooting. Following his arrest for a
    probation violation, Montelongo admitted he saw the shooting, but claimed he was not
    involved. During a police interview, Soria indicated Montelongo was the shooter.
    DISCUSSION
    Montelongo claims the court erred in denying his motion to withdraw his guilty
    plea and his admission of the gun use allegation because his plea was involuntary and the
    product of duress. He also claims his former attorney rendered ineffective assistance of
    counsel because the attorney led him "to believe that if he took the deal he would only
    serve a maximum of [15] years," counsel "urgent[ly] insiste[d]" that he accept the plea
    2      The following brief summary of the facts is taken from the probation officer's
    report because Montelongo entered his guilty plea during trial.
    3
    offer, and "the hastiness of the proceedings resulted in a coerced plea of guilty." We
    reject these claims.
    A. Procedural Background
    1. Montelongo's guilty plea
    On August 15, 2012, during trial, Montelongo withdrew his not guilty plea,
    pleaded guilty to one count of murder as charged in count 1, and admitted a gun use
    enhancement allegation (§ 12022.53, subd. (b)). With the assistance of his appointed
    counsel, Ricardo D. Garcia, Montelongo executed a guilty plea form, which indicated he
    had not been induced to enter the plea by any promise or representation, except: "Stip
    15-life plus 10 years." With his initials, Montelongo acknowledged he understood the
    "maximum punishment" he could receive as result of his plea was "25 years
    imprisonment or imprisonment plus a term of mandatory supervision."
    In court, Montelongo indicated he wished to plead guilty to count 1 and the gun
    use allegation. He admitted he signed and initialed the plea form after discussing the
    form with his attorney. He also indicated he had no questions about the contents of the
    form, and Garcia had answered any questions he had in going over the form. The
    following exchange occurred among the court, Montelongo, and Montelongo's counsel,
    Garcia:
    "[The Court:] Paragraphs one and two comprise the plea agreement,
    which indicates you're going to enter a plea to count [1,] a violation
    of Penal Code section 187. You're going to admit an allegation of
    [section] 12022.53[, subdivision] (b) and the stipulated sentence is
    15 years to life plus ten years; is that your full understanding of the
    plea agreement?
    4
    "[Montelongo:] Yes.
    "[The Court:] Has anyone made any other promise or agreement
    with you other than what I just read to you?
    "[Montelongo:] No, sir. [¶] . . .
    "[The Court:] I'm obligated by law to tell you the maximum
    possible consequences. The plea agreement we know is 15 plus ten.
    The maximum, technically under the law, can be higher. . . . [¶] . . .
    [¶] . . . Do you understand all of that?
    "[Montelongo:] Yes.
    "[The Court:] Have you had sufficient time to discuss this case with
    your attorney and make him aware of everything you know about the
    case?
    "[Montelongo:] Yes.
    "[The Court:] Mr. Garcia, did you advise your client of all his
    rights, possible defenses to the charges, the consequences of his plea
    and the admission?
    "[Garcia:] I have.
    "[The Court:] Do you join in the waiver of the rights and the entry
    of the plea?
    "[Garcia:] One moment, Your Honor.
    "[The Court:] Okay.
    "[Garcia:] Yes, Your Honor, I do." (Italics added.)
    Montelongo indicated he had not been not threatened or coerced into pleading
    guilty and he was pleading guilty freely and voluntarily because he was guilty. He also
    indicated he had no questions about the form or anything discussed in court.
    5
    Montelongo then pleaded guilty to count 1 and admitted the firearm allegation.
    The court accepted the plea and admission, finding Montelongo understood the nature of
    the proceedings and the consequences of his plea.
    The following month, Garcia was relieved as Montelongo's counsel and Sean
    Leslie was substituted as his new counsel of record.
    2. Montelongo's motion to withdraw his plea
    Montelongo thereafter filed a motion to withdraw his guilty plea. In his motion,
    Montelongo asserted that when he pleaded guilty and admitted the enhancement
    allegation, he did not understand that he was pleading to a prison term of 15 years to life,
    and "would not have done so if properly advised." Rather, he "believed he was accepting
    a 15 year sentence and would be released from custody when he was 35 years old."
    Montelongo also claimed he did not have enough time to consider the prosecutor's plea
    offer because Garcia told him to "hurry up" and that he "didn't have much time."
    The prosecutor's written opposition argued that Montelongo's plea was not the
    result of duress; it was voluntarily and freely made.
    At the hearing on his motion during the sentencing proceeding, Montelongo
    testified that from the time of his arraignment until his trial, he only saw his attorney,
    Garcia, three times. Montelongo stated that Garcia told him during trial that he only had
    "a matter of minutes" to accept a plea deal and he should take the deal because he would
    be "out" when he was 35 years old. Prior to that day, the prosecutor's offer was 25 years
    to life. According to Montelongo, when Garcia spoke to him about the change of plea, he
    said he requested some time to think about it and discuss the offer with his family.
    6
    Garcia told him he had to hurry up, and he was not allowed to speak to his parents before
    pleading guilty. Montelongo testified he "felt overwhelmed and didn't know what to do."
    He stated that Garcia only spent "a minute or two" discussing the plea form with him and
    indicated he did not know what the word "Stip" referred to.
    Montelongo also stated that while the judge was going through the plea form with
    him, he was relying on his lawyer, who would nod and say, "Yes." He indicated that he
    did not understand what the judge meant when he said "Stip to 15 years to life."
    Montelongo claimed his lawyer said he would be out of prison in 15 years, and this was
    the only reason he pleaded guilty. He indicated he would not have pleaded guilty to the
    murder count had he known there was a "life charge or a life consequence."
    During cross-examination, Montelongo indicated he had never heard anyone use
    the term "stip" during the eight months he was in jail. He acknowledged that he initialed
    the plea form; that the form stated 15 years to life, plus 10 years; that the form stated he
    understood the maximum punishment was 25 years imprisonment plus a term of
    mandatory supervision; and that he could get lifetime parole. Montelongo further
    acknowledged he said "[y]es" when the judge asked him whether he understood that the
    stipulated sentence was 15 years to life, plus 10 years.
    The prosecution called Montelongo's former counsel, Garcia, to testify. Garcia
    testified that he spent about 20 hours discussing the case with Montelongo before trial.
    He indicated that he explained the settlement offers to Montelongo and that he also
    explained in plain English the difference between an indeterminate life term and a
    determinate term that is "a straight number of years." Garcia stated he discussed with
    7
    Montelongo what a "life" term meant on three or four occasions. Montelongo never
    communicated any difficulty or confusion understanding this distinction.
    Garcia also testified that prior to trial, the prosecutor had offered to settle the
    matter for a sentence of 15 years to life, plus 10 years, which he had explained to
    Montelongo, who rejected the offer. Garcia indicated that matters arose during trial
    which he believed negatively impacted his case, so he discussed resolving the matter with
    the district attorney's office. He conveyed the offer to Montelongo, who never
    communicated any difficulty in understanding the possible sentence. He explained the
    concept of a stipulated sentence and a "stip" to Montelongo, who appeared to understand.
    Garcia further testified he never told Montelongo he would be out of prison after
    15 years when he was 35 years old. He did tell Montelongo the deal needed to be done
    immediately. They went over the change of plea form together and he reviewed the
    entire form with Montelongo "in detail." Montelongo did not communicate any failure to
    understand nor did he indicate anything that would have led Garcia to believe that
    Montelongo thought he would be getting out of prison in 15 years.
    a. Ruling
    After hearing the testimony and arguments of counsel, the court denied
    Montelongo's motion. The court found there was "no doubt" that Montelongo knew from
    the outset that he was facing a life sentence. The court noted that during the discussion of
    the plea agreement he had asked Montelongo whether he had any questions, and
    Montelongo said, "No." Further, when Montelongo was asked whether he understood the
    8
    plea agreement, which was a stipulated sentence of 15 years to life plus 10 years,
    Montelongo responded, "Yes." The court then stated:
    "There's no doubt in my mind at the time he entered the plea he
    knew that it was a life term case.
    "The implication that Mr. Garcia forced him or coerced him into the
    plea, rushed him into the plea, I find not to be credible. One, the
    incidents that gave rise to the People [being] willing to extend an
    offer, as indicated to by both Mr. Garcia and by the minutes of the
    court, show those events occurred prior to the noon break. In fact,
    we recessed the jury early, at 11:47 a.m.
    "So that when during the plea itself, at page five, Mr. Montelongo
    was asked, have you had sufficient time to discuss this case with
    your attorney and make him aware of everything you know about the
    case? He responded yes. And finally, which is at least part of the
    change of plea process that I use, I specifically asked him, starting at
    page 28—on line 28, excuse me, on page five, and going through to
    page six: Mr. Montelongo, has anyone threatened you or threatened
    anyone near or dear to you to try to force you or coerce you to plead
    guilty? He said no.
    "And then, before I actually took the plea, I finished up with, do you
    have any questions at all about anything on the form or anything we
    discussed here in court? He responded no.
    "I find his responses then to be credible. Therefore, the motion to
    withdraw the plea is hereby denied."
    The court then sentenced Montelongo pursuant to the plea agreement to a state
    prison term of 15 years to life plus 10 years. Montelongo's appeal followed.
    B. Applicable Legal Principles
    Section 1018 provides that, "[o]n application of the defendant at any time before
    judgment . . . , the court may . . . for a good cause shown, permit the plea of guilty to be
    9
    withdrawn and a plea of not guilty substituted. . . . This section shall be liberally
    construed to effect these objects and to promote justice."
    In People v. Weaver (2004) 
    118 Cal. App. 4th 131
    , 145-146, this court explained
    the general legal principles that apply to a defendant's motion to withdraw a guilty plea:
    "A defendant who seeks to withdraw his guilty plea may do so
    before judgment has been entered upon a showing of good cause.
    [Citations.] . . . 'Good cause must be shown for such a withdrawal,
    based on clear and convincing evidence. [Citation.]' [Citations.]
    'To establish good cause, it must be shown that defendant was
    operating under mistake, ignorance, or any other factor overcoming
    the exercise of his free judgment. [Citations.] Other factors
    overcoming defendant's free judgment include inadvertence, fraud or
    duress. [Citations.]' [Citation.] '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.' [Citation.]
    "'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.]' [Citation.] 'Guilty pleas resulting from a bargain should
    not be set aside lightly and finality of proceedings should be
    encouraged.'"
    "A plea may not be withdrawn simply because the defendant has changed his
    mind." (People v. Nance (1991) 
    1 Cal. App. 4th 1453
    , 1456.) "The fact that [a defendant]
    may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant
    the plea being withdrawn." (People v. Ravaux (2006) 
    142 Cal. App. 4th 914
    , 919, citing
    People v. Urfer (1979) 
    94 Cal. App. 3d 887
    , 892.)
    On appeal, we will not reverse a trial court's decision to grant or deny a
    defendant's motion to withdraw a guilty plea unless an abuse of the court's discretion is
    10
    clearly shown. (People v. Superior Court (Giron) (1974) 
    11 Cal. 3d 793
    , 796; People v.
    
    Ravaux, supra
    , 142 Cal.App.4th at p. 917.) We "must adopt the trial court's factual
    findings if substantial evidence supports them." (People v. Fairbank (1997) 
    16 Cal. 4th 1223
    , 1254.) A trial court abuses its discretion if it "exercises discretion in an arbitrary,
    capricious or patently absurd manner resulting in a manifest miscarriage of justice."
    (People v. Shaw (1998) 
    64 Cal. App. 4th 492
    , 496.)
    A criminal defendant is constitutionally entitled to effective assistance of counsel.
    (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 
    466 U.S. 668
    , 684-685; People v. Pope (1979) 
    23 Cal. 3d 412
    , 422, disapproved on another
    ground by People v. Berryman (1993) 
    6 Cal. 4th 1048
    , 1081, fn. 10.)
    To show denial of the right to effective assistance of counsel, a defendant must
    show (1) his counsel's performance was below an objective standard of reasonableness
    under prevailing professional norms, and (2) the deficient performance prejudiced the
    defendant. (Strickland v. 
    Washington, supra
    , 466 U.S. at pp. 687, 691-692; People v.
    Ledesma (1987) 
    43 Cal. 3d 171
    , 216-217; People v. 
    Pope, supra
    , 23 Cal.3d at p. 425.) To
    show prejudice, a defendant must show a reasonable probability that he would have
    received a more favorable result had his counsel's performance not been deficient.
    (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "A reasonable probability is a
    probability sufficient to undermine confidence in the outcome." 
    (Strickland, supra
    , 466
    U.S. at p. 694.)
    11
    C. Analysis
    We first reject Montelongo's claim that his plea was involuntary and the product of
    duress, and, thus, that the court abused its discretion in denying his motion to withdraw
    his guilty plea and his admission of the gun use allegation. We conclude substantial
    evidence supports the court's implied factual determination that when Montelongo
    entered his plea, he was not operating under mistake, ignorance, duress, or "'any other
    factor overcoming the free exercise of his free judgment'" (People v. 
    Weaver, supra
    , 118
    Cal.App.4th at pp. 145-146); and, thus, Montelongo has failed to meet his burden of
    making a clear showing of abuse of discretion. Both in the change of plea form and
    orally at the hearing on his motion in response to the court's questions, Montelongo
    indicated he understood that, in exchange for his plea, he would be sentenced to a prison
    term of 15 years to life plus 10 years. He also indicated in his testimony that he had not
    been not threatened or coerced into pleading guilty and he was pleading guilty freely and
    voluntarily because he was guilty.
    In his testimony, Montelongo's former counsel Garcia stated that he went over the
    change of plea form with Montelongo and reviewed the entire form with him "in detail."
    Garcia further testified that although he did tell Montelongo the plea deal needed to be
    done immediately, he never told Montelongo he would be out of prison after 15 years
    when he was 35 years old.
    After reviewing the totality of the circumstances, we conclude the court acted well
    within its discretion and properly denied Montelongo's motion to withdraw his guilty plea
    and admission of the gun use enhancement allegation.
    12
    We also reject Montelongo's related claim that Garcia rendered ineffective
    assistance of counsel by leading him "to believe that if he took the deal he would only
    serve a maximum of [15] years," and by "urgent[ly] insist[ing]" that he accept the plea
    offer in such a way that "the hastiness of the proceedings resulted in a coerced plea of
    guilty." Substantial evidence establishes that Garcia spent about 20 hours discussing the
    case with Montelongo prior to trial. Garcia indicated in his testimony that he conveyed
    all settlement offers to Montelongo, and explained to him the difference between
    indeterminate and determinate terms. Garcia testified that prior to trial, the prosecutor
    had offered to settle the matter for a sentence of 15 years to life, plus 10 years, and he had
    explained this offer to Montelongo, who rejected it. Garcia also stated that on three or
    four occasions he discussed with Montelongo what a "life" term meant; and he also
    explained the concept of a stipulated sentence and a "stip" to Montelongo, who appeared
    to understand. As already discussed, Garcia testified he never told Montelongo he would
    be out of prison after 15 years when he was 35 years old.
    Based on the foregoing record, we conclude Montelongo has failed to meet his
    burden of establishing Garcia's performance was deficient. (See Strickland v.
    
    Washington, supra
    , 466 U.S. at p. 687; People v. 
    Ledesma, supra
    , 43 Cal.3d at p. 216.)
    For all of the foregoing reasons, we affirm the judgment and the order denying
    Montelongo's motion.
    13
    DISPOSITION
    The judgment and order are affirmed.
    NARES, J.
    WE CONCUR:
    McCONNELL, P. J.
    HALLER, J.
    14
    

Document Info

Docket Number: D063233

Filed Date: 11/27/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021