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OPINION

THE COURT*

INTRODUCTION

Appellant Gabriel Donovan DeHerrera contends the trial court abused its discretion by denying his motion to withdraw his plea. He also contends defense counsel rendered ineffective assistance of counsel during plea negotiations. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

The Tuolumne County District Attorney's Office filed a complaint against DeHerrera on December 28, 2015, charging him with committing three felony and two misdemeanor offenses against the victim, Jane Doe. Count 1 charged a violation of Penal Code1 section 245, subdivision (a)(1), assault with a deadly weapon; count 2 charged a violation of section 422, subdivision (a), criminal threats; count 3 charged a violation of section 236, false imprisonment by violence; count 4 charged a misdemeanor violation of section 243, subdivision (e)(1), battery; and count 5 charged a misdemeanor violation of section 594, subdivision (a)(3), vandalism. As to counts 1 through 3, it was alleged that DeHerrera had been convicted of two felonies within the meaning of section 1203, subdivision (e)(4), two convictions within the meaning of section 243, subdivision (e)(1), and a prior conviction within the meaning of section 667, subdivision (a)(1).

On June 19, 2017, a first amended information was filed. The offenses charged remained the same as in the original complaint. As to count 1, the first amended information now alleged that DeHerrera had inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a) and that the offense was therefore a violent felony within the meaning of section 667.5, subdivision (c)(8). It was further alleged as to counts 1 through 3 that DeHerrera had suffered two prior strike convictions under the "Three Strikes" law, within the meaning of section 667, subdivisions (b) through (i). As to counts 1 and 2, it was alleged DeHerrera previously had been convicted of two serious felonies within the meaning of section 667, subdivision (a)(1).

On June 19, 2017, DeHerrera entered into a plea agreement. The plea agreement provided for DeHerrera to plead guilty or no contest to counts 1 and 2 and advised him that count 1 was a violent felony and accrual of credits would not exceed 15 percent. The total agreed upon sentence would be 23 years eight months.

At the change of plea hearing, the district attorney stated the plea agreement was based on the first amended information. DeHerrera was to plead guilty to count 1 and admit the section 12022.7 allegation. He also was to plead guilty to counts 2, 3, and 4 and admit the two section 667, subdivision (a) prior conviction allegations. Further, DeHerrera was to admit to suffering two prior strike convictions, but one of the strike convictions would be dismissed if DeHerrera appeared for sentencing. DeHerrera was agreeing to plead in exchange for a negotiated disposition of 23 years eight months. Count 4 of the first amended complaint was amended to reflect a misdemeanor violation of section 273.5.

Sentencing was to be set for the first week of August and DeHerrera would be fitted with an ankle monitor until sentencing. If DeHerrera appeared for sentencing, the district attorney would dismiss one of the prior strike convictions. If he failed to appear, he would instead face a sentence of 35 years to life.

When the trial court asked for the factual basis for the plea, the district attorney stated that on or about October 3, 2015, DeHerrera threatened to kill Jane Doe, with whom he had a prior dating relationship. He took off his belt, wrapped it around her neck and "told her quite explicitly that her life was over." The victim was in sustained fear but was able to record the incident on her cell phone. She could be heard gasping for air and pleading for her life. DeHerrera restricted Jane Doe's movements using violence and did not allow her to leave. The district attorney also stated, "we're stipulating to the fact that the defendant personally inflicted great bodily injury during the course of this assault."

The trial court asked if DeHerrera wanted to "plead guilty based upon the representations made here in court." DeHerrera responded, "Yes." The trial court then proceeded to explain his constitutional rights and the consequences of the plea, including that "it's a violent felony, you serve that at 85 percent." DeHerrera affirmatively acknowledged that he understood. The trial court confirmed that DeHerrera had enough time to discuss the plea agreement with his defense counsel.

DeHerrera then proceeded to plead guilty and admit the enhancements in accordance with the plea agreement. DeHerrera admitted the great bodily injury enhancement "pursuant to People versus West."2 The trial court inquired, "So you're doing this to take advantage of this plea agreement; is that correct?" To which DeHerrera responded, "That is correct." The trial court found his plea was knowingly and voluntarily made and there was a factual basis for the plea.

Following his guilty plea and admission, DeHerrera obtained new counsel and sought to withdraw his plea. His counsel argued he had received ineffective assistance of counsel and there was no factual basis for the great bodily injury admission. When the trial court inquired of counsel, "Can't the defendant under a West plea plead guilty to the charges where he disputes there's a factual basis but pleads guilty to take advantage of the plea bargain?" Counsel responded, "He certainly can." Ultimately, the trial court denied the motion to withdraw the plea.

DeHerrera filed a notice of appeal on January 11, 2018, and requested a certificate of probable cause to appeal the denial of his motion to withdraw his plea, alleging defense counsel rendered ineffective assistance. The certificate of probable cause was granted.

DISCUSSION

DeHerrera contends his admission to the great bodily injury enhancement was not supported by substantial evidence and thus, he should have been able to withdraw his plea. He contends the trial court abused its discretion in denying his motion. He also contends he received ineffective assistance of counsel during the plea bargaining process.

I. Motion to Withdraw Plea

Standard of Review

The standard of review on section 1018 motions to withdraw a plea is established. "The Supreme Court of the United States has stated in no uncertain terms that guilty pleas entered as a result of a bargain should not be lightly set aside and that the finality of such proceedings should be encouraged." (People v. Urfer (1979) 94 Cal.App.3d 887, 893, fn. 6.) "The trial court may `for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.' (Pen. Code, § 1018.)" (People v. Grey (1990) 225 Cal.App.3d 1336, 1340.) Although "a plea of guilty may be withdrawn for mistake, ignorance, or inadvertence or any other factor overreaching defendant's free and clear judgment, the facts of such grounds must be established by clear and convincing evidence." (People v. Urfer, supra, at p. 892.) Denial of a motion to withdraw a guilty or nolo contendere plea will not be reversed unless the defendant clearly demonstrates an abuse of discretion. (Ibid.; People v. Grey, supra, at p. 1340.)

Under section 1192.5, when a trial court accepts a plea of guilty or no contest, it shall inquire as to the factual basis for the plea. (§ 1192.5.) In doing so, "the trial court must garner information regarding the factual basis either from the defendant or defense counsel." (People v. Holmes (2004) 32 Cal.4th 432, 442 (Holmes).) The trial court may "satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record [provided that] the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel's advice." (People v. Palmer (2013) 58 Cal.4th 110, 118.)

"[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea." (Holmes, supra, 32 Cal.4th at p. 443.)

Analysis

Here, DeHerrera contends the evidence was insufficient to support the great bodily injury enhancement which he admitted. He admitted the great bodily injury enhancement "pursuant to People versus West." He acknowledged he was doing so specifically to take advantage of the plea agreement. He admitted the enhancement after the district attorney recited a factual basis and DeHerrera acknowledged he wanted to plead and admit enhancements based upon this factual recitation.

The court in In re Alvernaz (1992) 2 Cal.4th 924, 932 (Alvernaz) characterized a West plea as a "plea of nolo contendere, not admitting a factual basis for the plea." Such a plea "allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence." (People v. Rauen (2011) 201 Cal.App.4th 421, 424.) As the court in West acknowledged, however, "[a] defendant who knowingly and voluntarily pleads guilty or nolo contendere can hardly claim that he is unaware that he might be convicted of the offense to which he pleads. . . ." (West, supra, 3 Cal.3d at p. 612.)

When a defendant changes his or her plea to guilty or no contest, the plea is deemed to constitute a judicial admission of every element of the offense charged. It serves as a stipulation that the People need not introduce proof to support the accusation. "[T]he plea ipso facto supplies both evidence and verdict." (People v. Voit (2011) 200 Cal.App.4th 1353, 1363.)

After consultation with counsel, DeHerrera conceded a factual basis for his plea existed. Although no reference to documents in the record was included in the recitation of the factual basis, no such reference is necessary where the defendant has had adequate opportunity to discuss the plea with counsel. (See People v. Palmer, supra, 58 Cal.4th at p. 118.) The trial court's acceptance of DeHerrera's admission to the great bodily injury enhancement falls within its "wide discretion in determining whether a sufficient factual basis exists" for a no contest or guilty plea. (Holmes, supra, 32 Cal.4th at p. 443.)

The trial court did not abuse its discretion in denying DeHerrera's motion to withdraw his plea.

II. No Ineffective Assistance of Counsel

DeHerrera contends he received ineffective assistance of counsel during the plea bargain process. The record does not support this contention.

Standard of Review

The standard of review when questioning whether a defendant received effective representation is well established. "In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance `"`"fell below an objective standard of reasonableness . . . under prevailing professional norms."'"' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mickel (2016) 2 Cal.5th 181, 198.)

Analysis

A defendant is entitled to the effective assistance of counsel during the plea bargaining process and if ineffective assistance of counsel resulted in a defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to grounds to set aside a guilty plea. (Hill v. Lockhart (1985) 474 U.S. 52, 56-60 (Hill); McMann v. Richardson (1970) 397 U.S. 759, 771.) To establish ineffective assistance of counsel in the plea bargain process, a defendant must establish incompetent performance by counsel and a reasonable probability that, but for counsel's incompetence, the defendant would not have pled guilty and would have insisted on a trial. (Hill, supra, at pp. 58-59.)

In deciding whether counsel has provided effective representation in the plea bargain process, the Supreme Court has determined that: "Under these guidelines, defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction." (Alvernaz, supra, 2 Cal.4th at p. 937.) Matters involving the exercise of counsel's judgment, such as assessment of the strength of the prosecution's case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, without more, will not give rise to a claim of ineffective assistance of counsel. (Id. at p. 938.)

Defense counsel submitted a declaration, which was included as part of the prosecution's opposition to DeHerrera's motion to withdraw his plea. In his declaration, defense counsel notes that from the inception of his representation of DeHerrera, DeHerrera was facing a possible sentence of between 25 years to life and 60 years to life. At every meeting DeHerrera had with defense counsel, he expressed the goal of having defense counsel "get him a determinate offer, regardless of what charges they were."

Defense counsel states that the district attorney "was holding fast" to a 25 years to life offer. During a three-month period, defense counsel and DeHerrera "had several conversations" around a plea offer. Eventually, defense counsel submitted an offer that would result in a determinate term of 20 years four months, with one strike being stricken. The district attorney rejected that offer and countered with a determinate term of 23 years eight months and a great bodily injury enhancement admission, which had not yet been charged.

DeHerrera and defense counsel met in counsel's office to discuss the counter offer. According to defense counsel's declaration, the discussion included the fact that the enhancement would require 85 percent of the term be served, instead of 80 percent; defense counsel did not believe the district attorney could add a great bodily injury enhancement without the consent of the defense; and defense counsel and DeHerrera did not believe the district attorney ultimately could prove great bodily injury.

The conversation in defense counsel's office included a discussion that "the GBI was not founded in facts, but we would be taking advantage of the plea agreement even though we did not agree with the charges. The defendant was very willing to take such an offer because it was far better than even 25 to life as an indeterminate term."

During his representation of DeHerrera, defense counsel stated that they discussed the charges and state of the evidence multiple times. Defense counsel remined DeHerrera that there was a video of him assaulting the victim, which was very damaging to his defense.

Defense counsel declared, "There was never any real debate about taking the offer because the defendant's entire goal, which he repeated to me several times, was to get a determinate offer."

Defense counsel's declaration constitutes substantial evidence that DeHerrera discussed the case with defense counsel multiple times. This included a discussion of the charges and assessment of the evidence; challenges the district attorney would have in proving the case, including the great bodily injury enhancement; and the risks of going to trial versus accepting a plea bargain, including maximum and minimum sentences.

Contrary to DeHerrera's contention, the declaration demonstrates that defense counsel investigated and assessed the case against DeHerrera before advising DeHerrera accept a plea bargain. Defense counsel also appeared to be fully aware of DeHerrera's prior strike convictions and considered them in assessing the potential sentence after trial and in a plea bargain.

Furthermore, there is nothing in defense counsel's declaration that suggests he misled DeHerrera about the effect of a great bodily injury enhancement on the accrual of credits. On the contrary, DeHerrera was advised by defense counsel that adding the enhancement would require he serve 85 percent of his term, instead of 80 percent, and that the plea bargain called for a stipulated term of 23 years eight months. This restriction on accrual of credits also was set forth in the written plea agreement signed by DeHerrera. Lastly, the trial court verified that DeHerrera understood he would serve at least 85 percent of his sentence under the plea agreement prior to accepting his guilty plea and admission to the great bodily injury enhancement.

There is no evidence in the record demonstrating that defense counsel failed to "communicate accurately to [the] defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction." (Alvernaz, supra, 2 Cal.4th at p. 937.) Thus, defense counsel's representation was not incompetent.

Having failed to establish that defense counsel's advice was incompetent, DeHerrera cannot establish the second prong, namely that he would not have accepted a plea bargain but for counsel's incompetence. Regardless, DeHerrera cannot establish that he would have gone to trial, rather than accept a plea bargain. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78.) DeHerrera was focused on obtaining a determinate sentence, something he would not receive had he gone to trial. The sentence he received in the plea agreement was less than he would have received had he been convicted in a trial and was the determinate sentence that he insisted upon.

To establish ineffective assistance of counsel in the plea bargain process, a defendant must establish incompetent performance by counsel and a reasonable probability that, but for counsel's incompetence, the defendant would not have pled guilty and would have insisted on a trial. (Hill, supra, 474 U.S. at pp. 58-59.) Neither of those elements has been established by DeHerrera.

DISPOSITION

The judgment is affirmed.