State Of Washington v. Salvador Gumba San-jose ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 69021-3-1
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SALVADOR GUMBA SAN-JOSE, o)n
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Appellant. FILED: June 24, 2013
Per Curiam—Salvador San-Jose appeals the sentence imposed following
his conviction for third degree assault with sexual motivation. He contends a
community custody prohibition against contact with minor children, including his
daughter and granddaughter, violates his constitutional rights to parent. The
State concedes, and we agree, that the challenged condition was imposed
without the required finding of reasonable necessity. State v. Letourneau, 100
Wash. App. 424, 442, 997 P.2d 436 (2000). Accordingly, we accept the State's
concession and remand for the court to either enter the requisite finding or
modify the condition.
No. 69021-3-1/2
In a pro se statement of additional grounds, San-Jose alleges violations of
his Miranda1 rights, his attorney-client privilege, his right to effective assistance of
counsel, and due process. The gist of these complaints is his discontent with his
guilty plea,2 and the trial court's denial of his motion to withdraw it. Prior to
sentencing, he moved to withdraw his plea on the grounds that his counsel had
failed to fully explain it, coerced him to accept it, and misinformed him about
immigration consequences. The trial court denied his motion, finding his
testimony was not credible and that his counsel was effective.
Prejudgment withdrawal of a plea is governed by CrR 4.2(f), which allows
withdrawal when necessary to correct a manifest injustice. CrR 4.2(f); State v.
Puqh, 153 Wash. App. 569, 576, 222 P.3d 821 (2009). This is a "demanding
standard." State v. Tavlor. 83 Wash. 2d 594, 597, 521 P.2d 699 (1974). We review
the denial of a motion to withdraw a guilty plea for abuse of discretion. Pugh,
153 Wn. App. at 576. There was no abuse of discretion here.
San-Jose's counsel negotiated an agreement that reduced three counts of
third degree rape of a child to a single count of third degree assault with sexual
motivation. The court found counsel's testimony regarding counsel's interaction
with San-Jose and their discussion of the sentence enhancement and
immigration consequences credible. The court also noted that San-Jose's
answers to questions at the plea hearing demonstrated that his plea was
knowing and voluntary. The record amply supports the court's findings and
1384 U.S. 436, 86 S. Ct 1602, 16 L. Ed. 2d 694 (1966).
2The claims of Miranda rights violations, attorney misconduct, and various due process
violations involve factual allegations outside of the record and are properly raised in a personal
restraint petition. RAP 16.3: State v. Norman. 61 Wash. App. 16, 27-28, 808 P.2d 1159 (1991).
No. 69021-3-1/3
conclusions regarding counsel's effectiveness and the validity of San-Joes's
plea. San-Jose did not meet the "demanding standard" of demonstrating a
manifest injustice.
Affirmed in part and remanded.
For the court:
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