People v. Serrano CA4/1 ( 2024 )

Filed 5/17/24 P. v. Serrano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082075
Plaintiff and Respondent,
v. (Super. Ct. No. SCS319906)
JOSE ANGEL SERRANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Enrique E. Camarena, Judge. Affirmed and remanded with directions.
Laura Vavakin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina, Stephanie A. Mitchell, and Caelle McKaveney, Deputy
Attorneys General, for Plaintiff and Respondent.
Jose Angel Serrano pled guilty to two counts of oral copulation by
duress (Pen. Code, § 287, subd. (c)(2)(A); counts 2 & 3), one count of sexual
penetration by duress (§ 289, subd. (a)(1)(A); count 5), and one count of rape
by duress (§ 261, subd. (a)(2); count 8). As to counts 2, 3, and 5, Serrano
admitted the other party, J.A., was a minor aged 14 years or older, and as to
all counts he admitted the acts involved the same person on separate
occasions (§ 667.6, subd. (d)) who was particularly vulnerable (Cal. Rules of
Court, rule 4.421(a)(3)).
The trial court denied Serrano’s subsequent motion to withdraw his
guilty plea and sentenced him to 32 years in prison.
Serrano appeals, contending the trial court erred in (1) denying his
motion to withdraw his plea, given the trial court’s and his counsel’s
misadvisements as to material terms of the plea; and (2) refusing to award
presentence custody credits. He further claims his trial counsel’s
misadvisements constitute ineffective assistance of counsel and, to the extent
one misadvisement is forfeited, his subsequent counsel provided ineffective
assistance of counsel in failing to raise that issue.
We conclude the trial court did not abuse its discretion in denying the
motion to withdraw Serrano’s guilty plea, as its ruling was supported by
substantial evidence. Because the evidence does not establish Serrano would
have rejected the plea absent the trial court’s mistaken advisement the term
of parole was 5 instead of 10 years, the court’s misadvisement did not merit
relief. Nor does the record support Serrano’s claim that the trial court failed
to consider trial counsel’s misadvisements in denying the motion.
We further conclude Serrano fails to establish his claims of ineffective
assistance of counsel. Serrano does not establish by a preponderance of the
evidence a reasonable probability he would have rejected the plea agreement
absent his trial counsel’s alleged misadvisements. Because Serrano’s trial
counsel’s misadvisements were not prejudicial, his subsequent counsel did
not provide ineffective assistance by failing to raise one of the
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misadvisements in the motion to withdraw. We also conclude Serrano fails to
establish that cumulatively the trial court’s and his trial counsel’s
misadvisements made his plea not knowing, voluntary, and intelligent such
that good cause exists for withdrawal.
Nonetheless, we agree with Serrano that the trial court erred in failing
to award presentence custody credits where Serrano was already in federal
custody on separate charges at the time he was arraigned in this matter,
Serrano was subject to a “no bail” order throughout the pendency of this
matter, and Serrano was sentenced in this case while his federal charges
remained unfinalized.
We thus affirm (1) the trial court’s denial of the motion to withdraw
Serrano’s guilty plea and (2) the judgment of conviction, but remand to the
trial court to award presentence custody credits consistent with this opinion.
I.
One evening in March 2021, Serrano, then 47, called his 14-year-old
stepdaughter J.A., who was home alone with him, into his bedroom. At his
urging, she drank roughly four shots of liquor, snorted cocaine, and smoked
marijuana. Then, until approximately 8:00 a.m. the following morning,
Serrano repeatedly sexually assaulted J.A., who, while hazy on the details
due to bouts of lost consciousness, asked him to stop and told him he was
hurting her. DNA swabs taken from J.A. during a forensic examination
matched Serrano. While this incident was being investigated, Serrano was
taken into federal custody in April 2021 on unrelated drug and gun charges.
A November 2021 felony complaint charged Serrano with nine offenses
and various special allegations as a result of the incident involving J.A.
Serrano was arraigned on December 6, 2021, at which time the trial court
granted the People’s “no bail” motion and returned him to federal custody
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without bail. At no point during the pendency of this matter was Serrano
booked into county jail.
In August 2022, on the morning scheduled for the preliminary
examination, the People filed an amended complaint charging Serrano with
25 counts, two with life sentences, and numerous special allegations, several
of which also carried potential life sentences. After several hours of
negotiations, the trial court struck the amended complaint and Serrano pled
guilty to four of the original nine counts, an aggravating factor, and an age
enhancement in exchange for a sentencing range of 20 to 32 years. The plea
agreement, Serrano’s counsel, and the trial court while taking Serrano’s
guilty plea all mistakenly represented the parole term as 5 years, when the
statutory parole term was 10 years. (§ 3000(b)(2)(B).)
Shortly after, Serrano wrote a letter to the trial court requesting
withdrawal of his guilty plea. Serrano’s trial counsel was relieved and
replacement counsel (motion counsel) was appointed. In November 2022,
motion counsel moved to withdraw Serrano’s guilty plea. The court denied
the contested motion following a two-day evidentiary hearing.
The trial court found Serrano’s testimony not credible and the
testimony of his trial counsel credible. It found Serrano was fully informed of
the protracted plea negotiations and the People’s longstanding intention to
file the amended complaint should the preliminary hearing go forward. It
found any changes to the written plea agreement were discussed with
Serrano prior to his oral change of plea. The court concluded the plea was
modified at Serrano’s request to avoid the sodomy acts and allegations of
force he vehemently denied. The court concluded the emotional wellbeing of
J.A. and Serrano’s wife was a “significant” factor Serrano considered in
deciding to plead guilty. It noted Serrano expressed no reservations during
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the change of plea hearing, he asked clarifying questions of both the court
and his counsel, his “resolve to plead guilty and avoid the filing of the
amended complaint that included life allegations” did not change as a result
of the answers to those questions, and he had “ample opportunity to object or
outline his confusion” and “felt freely enough to” do so. The trial court found
the erroneous parole term not only “was not a significant factor in the
negotiations” but not a negotiated term at all. Thus, “on its own,” that
misadvisement “does not call for withdrawal of the plea.” The trial court
concluded Serrano failed to show by clear and convincing evidence good cause
to withdraw his plea.
On April 21, 2023, the trial court sentenced Serrano to a prison term of
32 years. The probation report recommended awarding no presentence
custody credits. The court requested and considered information about
Serrano’s federal custody for purposes of awarding credits, but ultimately
awarded zero credits, indicating its belief that it lacked discretion to award
credit for his time in federal custody.
II.
A.
First, Serrano argues reversal of his guilty plea is required because
(1) the trial court misadvised him of the direct consequences of his plea by
telling him he would serve 5 rather than 10 years on parole; (2) the trial court
failed to consider trial counsel’s misadvisements in denying his motion to
withdraw his plea; (3) his trial counsel provided ineffective assistance of
counsel by misadvising him on issues pertaining to the plea agreement or, to
the extent forfeited, motion counsel provided ineffective assistance by failing
to raise one of the misadvisements; and (4) cumulatively, the trial court’s and
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trial counsel’s misadvisements were prejudicial. We, however, conclude
reversal is not merited.
Prior to judgment, a court may grant a defendant’s motion to withdraw
a guilty plea “for a good cause shown.” (Pen. Code, § 1018.) A defendant
bears the burden of producing clear and convincing evidence of good cause,
which can encompass “[m]istake, ignorance[,] or any other factor overcoming
the exercise of free judgment.” (People v. Cruz (1974) 12 Cal.3d 562, 566.)
Proven ineffective assistance of counsel is good cause. (People v. McCary
(1985) 166 Cal.App.3d 1, 7.) Appellate courts review the denial of motions to
withdraw guilty pleas for abuse of discretion and must adopt the trial court’s
factual findings if supported by substantial evidence or a reasonable
inference drawn from that evidence. (People v. Harvey (1984) 151 Cal.App.3d
660, 667.) Conflicting evidence and inferences are resolved in favor of the
trial court’s order. (Ibid.) Appellate courts neither reweigh evidence nor
assess credibility. (People v. Lopez (2021) 66 Cal.App.5th 561, 574.)
1.
Serrano contends the trial court’s misadvisement of the parole term
requires reversal, because a 10-year term “would have been a deal breaker”
for him. The People disagree, relying on In re Moser (1993) 6 Cal.4th 342(Moser). Under our deferential review, we agree with the People that
Serrano fails to establish prejudice and therefore is not entitled to relief.
In Moser, our Supreme Court held that “a defendant who has pleaded
guilty after receiving inadequate or erroneous advice from the trial court with
regard to the potential consequences of a plea generally is entitled to obtain
relief only by establishing that he or she was prejudiced” by showing “that
but for the trial court’s erroneous advice with regard to the applicable parole
term, the defendant would not have entered the guilty plea.” (Moser, supra,
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6 Cal.4th at p. 345.) A defendant who fails to make that showing “can obtain
relief only if the period of parole imposed conflicts with a specific, negotiated
term of the plea agreement.” (Ibid.)
While Serrano claims on appeal that the 10-year parole term “would
have been a deal-breaker,” as the People note, Serrano’s hearing testimony
was unmistakable that while the erroneous parole term “would have been a
factor” in his decision to enter into the plea agreement, he only “[p]ossibly”
would have gone forward with the preliminary hearing and rejected the plea
deal on that basis. To the extent Serrano contends otherwise, the evidence
does not support his claim. Moreover, deferring, as we must, to the trial
court’s credibility findings, trial counsel was clear that the parole term was
never part of the plea negotiations, and Serrano identifies no clear conflict
between a 10-year parole term and any other negotiated term of the
agreement.
Because the evidence establishes neither (1) that, but for the trial
court’s misadvisement of the parole term, Serrano would have rejected the
plea deal; nor (2) that the 10-year parole term conflicts with a negotiated
term of the agreement, the trial court’s misadvisement is not an independent
basis for relief. Thus, the trial court did not abuse its discretion in denying
Serrano’s motion to withdraw his plea based on its own misadvisement.
(Moser, supra, 6 Cal.4th at p. 345.)
2.
Serrano also contends the trial court’s denial of his motion to withdraw
his plea was not supported by substantial evidence and was therefore an
abuse of discretion because the court did not consider trial counsel’s alleged
misadvisement as to Serrano’s eligibility for fire camp and other credits,
addressed in detail below. We, however, agree with the People that, while
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the ruling did not expressly address the misadvisement issue, the trial court
inferentially considered and rejected it.
“[T]here is no indication that the trial court here failed to consider”
those arguments, and Serrano “does not present, and our independent
research has not disclosed, any authority that requires the trial court to
make findings as to each argument raised in the pleadings.” (People v.
Codinha (2021) 71 Cal.App.5th 1047, 1072.) We agree with the People that
the reasonable inference from the trial court’s determinations that
(1) Serrano was not credible, (2) trial counsel was credible, and (3) Serrano
failed to establish good cause to support withdrawal of his plea, is that the
trial court considered and rejected on the merits Serrano’s claims of
misadvisement by his trial counsel. We disagree with Serrano’s position that
these findings “have nothing to do with the materiality of the
misadvisement.” The trial court’s overt credibility assessment directly bears
on whether it found Serrano’s contentions of the issue’s materiality genuine
and hence his showing of good cause.
Accordingly, we conclude substantial evidence supports the trial court’s
denial of Serrano’s motion, and its denial was not an abuse of discretion.
3.
Serrano argues his trial counsel provided ineffective assistance
meriting relief from his guilty plea by (1) misadvising him of the parole term
and (2) telling him he “would serve no more than 12-18 years” and
(3) “potentially even less if he joined the fire camp program,” for which he
was categorically ineligible. Should we find that Serrano waived the second
of these grounds, he argues his motion counsel provided ineffective assistance
by failing to raise it. We agree with the People that Serrano’s claims as to
both counsel require an analysis of the constitutional sufficiency of trial
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counsel’s representation or any resulting prejudice. If trial counsel did not
provide ineffective assistance of counsel, motion counsel’s failure to raise a
meritless argument cannot constitute ineffective assistance of counsel.
(People v. Jones (1979) 96 Cal.App.3d 820, 827.) We further agree with the
People that, even if we assume deficient performance by trial counsel,
Serrano’s claim fails because he does not meet his burden of establishing
prejudice.
In resolving this claim, we find it appropriate, given that the trial court
found trial counsel credible and Serrano incredible, to afford great deference
to trial counsel’s statements to the extent they conflict with Serrano’s.
(See People v. Perez (2018) 4 Cal.5th 1055, 1066 [where trial court resolved
question of fact, “we see no reason to withhold the deference generally
afforded to such factual findings”].)
“[I]n order successfully to challenge a guilty plea on the ground of
ineffective assistance of counsel, a defendant must establish not only
incompetent performance by counsel, but also a reasonable probability that,
but for counsel’s incompetence, the defendant would not have pleaded guilty
and would have insisted on proceeding to trial.” (In re Alvernaz (1992)
2 Cal.4th 924, 934 (Alvernaz).) Factors relevant to determining if a
defendant would have accepted or rejected a plea agreement “include:
whether counsel actually and accurately communicated the offer to the
defendant; the advice, if any, given by counsel; the disparity between the
terms of the proposed plea bargain and the probable consequences of
proceeding to trial, as viewed at the time of the offer; and whether the
defendant indicated he or she was amenable to negotiating a plea bargain.”
(Id. at p. 938.) “[A] defendant’s self-serving statement . . . is insufficient in
and of itself to sustain the defendant’s burden of proof as to prejudice, and
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must be corroborated independently by objective evidence.” (Ibid.) “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694
(Strickland).) The defendant’s burden of proof is preponderance of the
evidence. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1418.)
Serrano does not appear to argue his trial counsel misadvised him as to
the remainder of the plea, and substantial evidence supports the trial court’s
finding Serrano was otherwise informed of the parameters of his plea. As the
People note, trial counsel reviewed the plea agreement with Serrano line by
line and answered any questions. He explained to Serrano the effect of any
changes made after Serrano initialed and signed the form.
As the People contend, the evidence also establishes the probable
consequences of trial were not favorable to Serrano. Serrano admitted to
sexual activity with J.A. that was confirmed by DNA, but claimed the activity
was consensual and without force. Yet the evidence, giving due deference to
the trial court’s credibility findings, confirms trial counsel was not optimistic
about Serrano’s prospects. According to Serrano’s own letter to the court
shortly after the plea, his trial counsel told him “he had NO way to defend
[Serrano’s] case against these charges and 20 to 32 years was better than
life.” Trial counsel testified that the discovery supported theories of both
physical force and duress, and “duress could be proven in this case very
easily” given “the use of intoxicants” and Serrano’s “position of trust.” He
made this clear to Serrano. When viewing J.A.’s forensic interview with
Serrano, trial counsel also explained to him how the People could use
“different act[s]” as “separate incidents.” Serrano’s exposure on the original
complaint of nine counts with special allegations exceeded 100 years. The
amended complaint charged Serrano with 25 counts, two with life sentences
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and most with special allegations, some of which also carried potential life
sentences. Thus, as the People note, the likely outcome of trial would have
been the same or worse: Serrano would be found guilty and nevertheless
receive a parole period of ten years, ineligibility for fire camp, and eligibility
for violent offender credits at best, while very possibly being incarcerated for
life. To the extent Serrano claims the People ignore “other potential
outcomes,” we disagree. While it is true, as he argues, that the appellate
record contains no direct evidence of his guilt, the record is clear as to his
trial counsel’s views of the evidence and the likely outcome of any trial, a
relevant consideration under Alvernaz. (Alvernaz, supra, 2 Cal.4th at p. 938.)
Serrano makes much of his age—49—and the fact that a “32-year
sentence with violent offender credits” and 10 years of restrictive parole is
“essentially a life sentence.” But even serving “over 21 years,” as Serrano
acknowledges he will, provides at least the possibility of release. As avoiding
a life sentence was at least one of the reasons Serrano pled guilty, the
contemporaneous evidence, including the likely outcome of any trial, simply
does not corroborate Serrano’s after-the-fact claim that he “would not have
pleaded guilty” absent the misadvisements.
Indeed, as the People contend, the record shows that avoiding a life
sentence was only one of several reasons Serrano pled guilty. Serrano
himself said another reason was to avoid making his wife “listen[ ] to details
of . . . sexual acts that happened” with her daughter. Serrano was also
concerned about the deleterious effects testifying would have on J.A. To the
extent Serrano now argues he would not have pleaded guilty and seeks to
undermine the trial court’s finding that “Serrano considered [J.A.]’s and his
wife’s emotional status as significant” in his decision to plead guilty,
substantial evidence supports the trial court’s conclusion. In his letter to the
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judge, Serrano stresses in a postscript that his trial counsel told him J.A.
“was having a hard time breathing. She did not want to testify and
[Serrano’s] wife was also having a very hard time.” Serrano “truly felt such
emotion and empathy for both of them that [he] felt the only thing that could
stop all this suffering was to do what the prosecutor and [trial counsel]
wanted” and sign the plea agreement. He “was worried about them.” His
supplemental declaration reiterates that he “was concerned” about J.A. and
his wife “and the damage and suffering” J.A.’s testimony “would cause to
both.” Both Serrano and his trial counsel testified that, after the plea and at
Serrano’s request, trial counsel told Serrano’s wife that avoiding
traumatizing J.A. was one of the reasons he decided to plead guilty.
In sum, given trial counsel’s assessment of the evidence, Serrano’s
exposure, Serrano’s desire to avoid a life sentence, and Serrano’s significant
concern for the emotional wellbeing of his family should the trial go forward,
the record does not evidence a reasonable probability Serrano would have
chosen to proceed to trial had his trial counsel not misadvised him. Thus,
absent prejudice, we conclude Serrano’s trial counsel did not provide
ineffective assistance of counsel. (Strickland, supra, 466 U.S. at p. 697.)
Moreover, as trial counsel’s performance was not constitutionally deficient,
Serrano’s claim that his motion counsel provided ineffective assistance of
counsel in failing to raise one of the alleged misadvisements below likewise
fails. Given the trial court’s adequately supported findings and the evidence
before it, Serrano fails to meet his burden to show that raising the allegedly
incorrect representations as to his likely prison term would have resulted in
the trial court granting his motion to withdraw.
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4.
Even considering the collective prejudice of the trial court’s and trial
counsel’s misadvisements, as Serrano urges, we conclude he still fails to show
good cause to withdraw his plea. As explained above, given the significant
consideration Serrano gave to any trial’s likely effect on J.A. and his wife, his
desire to avoid spending the remainder of his life in prison, and the probable,
significant exposure Serrano faced had he proceeded to trial, we conclude
Serrano has failed to establish a reasonable probability he would have
rejected the plea agreement and proceeded to trial absent all the alleged
deficiencies combined.
We thus affirm the trial court’s order denying Serrano’s motion to
withdraw his guilty plea for failure to show good cause.
B.
Finally, Serrano contends he was entitled, under Penal Code
section 2900.5, to presentence credits for his time in federal custody from the
date of his arraignment to the date of his sentencing in this matter, such that
the trial court erred in awarding him zero credits. In their brief, the People
counter that, because Serrano’s federal custody is not “‘attributable to
proceedings related to the same conduct for which [Serrano] has been
convicted,’” he is not entitled to credits. (Citing § 2900.5, subd. (b).) At oral
argument, the People conceded a remand is appropriate yet contended
further evidence was needed to determine whether custody credits were
warranted. Upon independent review, we agree with Serrano that the trial
court erred in not awarding credits. (People v. Anaya (2007) 158 Cal.App.4th
608, 611.)
“[W]hen [a] defendant has been in custody . . . all days of
custody . . . shall be credited upon his or her term of imprisonment.”
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(§ 2900.5(a).) However, “credit shall be given only where the custody to be
credited is attributable to proceedings related to the same conduct for which
the defendant has been convicted.” (Id., subd. (b).) Further, “[c]redit shall be
given only once for a single period of custody attributable to multiple offenses
for which a consecutive sentence is imposed.” (Ibid.) In clarifying
section 2900.5, our Supreme Court has stated that, “where a period of
presentence custody stems from multiple, unrelated incidents of misconduct,
such custody may not be credited against a subsequent formal term of
incarceration if the prisoner has not shown that the conduct which underlies
the term to be credited was also a ‘but for’ cause of the earlier restraint.”
(People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 (Bruner).) In cases
involving dual custody, the defendant bears the burden of proving
entitlement to credit. (People v. Huff (1990) 223 Cal.App.3d 1100, 1105
(Huff).)
Here, Serrano was taken into federal custody in April 2021 on
unrelated drug and gun charges. When Serrano was arraigned in this matter
on December 6, 2021, the trial court granted the People’s no-bail motion and
remanded Serrano to federal custody. He remained remanded to federal
custody without bail throughout the pendency of this case. Serrano was
ultimately sentenced in this matter on April 21, 2023. At that time,
Serrano’s federal case was not yet final. The parties agree the relevant
period of dual custody comprises 502 days.
The People concede Serrano “was ‘in custody’” at a federal institution
for purposes of section 2900.5. They contend, however, Serrano is barred
from receiving presentence credit by Bruner’s strict causation rule. Yet
Bruner simply “conclude[d] that when presentence custody may be
concurrently attributable to two or more unrelated acts, and where the
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defendant has already received credit for such custody in another proceeding,
the strict causation rules of [In re] Joyner [(1989) 48 Cal.3d 487] should
apply.” (Bruner, supra, 9 Cal.4th at p. 1180, italics added.) At the time of
Serrano’s sentencing, such was not the case here. Rather, as Bruner itself
acknowledges, “section 2900.5 is intended to provide equitable treatment for
one held in pretrial custody on mere charges of crime.” (Id. at p. 1192.)
Serrano has shown “the pending [state] charge[s] alone would have prevented
his release during th[e relevant] period.” (Ibid.) Because he was held
without bail in this matter, he “could not have secured his release even if he
had made bail in the [federal] case” or if the federal charges were dropped.
(Huff, supra, 223 Cal.App.3d at p. 1106.) Accordingly, both the federal
charges and the instant charges were but-for causes of Serrano’s detention.
(In re Marquez (2003) 30 Cal.4th 14, 21.) Whether a formal “hold” was placed
on Serrano is irrelevant. As the People conceded at oral argument, Serrano’s
remand to federal custody without bail is the effective equivalent.
Despite the People’s argument to the contrary, at the time of
sentencing this was not a case involving a potential windfall of dual credit.
Such would be the case had Serrano already been convicted of and sentenced
for the federal charges at the time he was arraigned in this matter, as he
would have been required to serve that time in custody regardless. (See
generally In re Rojas (1979) 23 Cal.3d 152.) But those are not the facts here.
Rather, at the time of Serrano’s sentencing in this case, it was possible the
federal charges would be dismissed or Serrano found not guilty, in which case
he would never receive credit for his presentence custody. (People v. Lathrop
(1993) 13 Cal.App.4th 1401, 1404.) As Serrano was first sentenced in this
matter, the trial court here should have awarded Serrano credit for the
period from his arraignment through his sentencing, as his custody was
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attributable to the charges here. (Id. at p. 1405.) It was then for the federal
court, if and when the time arose, to account for the award of presentence
credits in this case so as to avoid duplicative credit. (Ibid.)
We thus conclude on this record Serrano has carried his burden of
showing entitlement to presentence credit for the time from his arraignment
to his sentencing in this matter.
III.
We affirm the trial court’s denial of Serrano’s motion to withdraw his
guilty plea. We also affirm the judgment of conviction but remand this
matter to the trial court to (1) determine whether the federal matter has been
finalized; (2) determine whether presentence credits were awarded in the
federal matter for the relevant period, December 6, 2021 to April 21, 2023,
totaling 502 days; and (3) if federal custody credits were not awarded for the
relevant period, then award presentence custody credits, including any
credits under Penal Code section 2933.1, consistent with this opinion.
Thereafter, the trial court shall prepare an amended abstract of judgment
and transmit a certified copy to the Department of Corrections and
Rehabilitation.
CASTILLO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
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