THE PEOPLE v. Armando Xique Nocelotl, Defendant and Appellant.

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. Armando Xique Nocelotl, Defendant and Appellant.

2d Crim. No. B236738

Decided: December 17, 2012

It is ordered that the opinion filed herein on November 20, 2012, be modified as follows:

1. On page 6, line 1 after the word “involvement” change the period to a comma.

2. On page 6, before the paragraph beginning with the words “In any event ․” insert the following.

In an amicus curiae brief in support of appellant's petition for rehearing, the Los Angeles County Public Defender argues that the information conveyed by counsel to appellant was more than mere advice.   Counsel allegedly made a “factual misrepresentation[ ]” that appellant's sentence would depend upon the result of the psychological evaluation.   Amicus contends that such a factual misrepresentation concerning appellant's sentence suffices to vitiate his plea.

Counsel's misrepresentation was not a factual statement that the trial court had committed itself to granting probation if the psychological evaluation were favorable.   The misrepresentation was an expression of counsel's opinion that the psychological evaluation would be the determining factor in the court's decision whether to grant probation.   Such an expression of opinion does not suffice to vitiate appellant's plea.4 This footnote will require renumbering of all subsequent footnotes.

The petition for rehearing is denied.

There is no change in the judgment.


4.   Even if the misrepresentation were one of fact, it would still not vitiate the plea.   In People v. Gilbert (1944) 25 Cal.2d 422, 443, our Supreme Court declared:  “Mere advice and persuasion or the expression of matters of opinion by [the defendant's] own attorney will not suffice to vitiate the plea.   Neither will unwarranted or even wilfully false statements of factual matters by his attorney suffice․  But if the representation of the private attorney presents a purported commitment by a responsible state officer which if actually made would vitiate the plea and if the acts or statements of such state officer, although innocently done or made, apparently corroborate the representation, are in good faith and without negligence relied upon by the defendant, and in truth operate to prevent the exercise of his free will and judgment, then the state in its solicitude for fairness will not accept the benefit of a plea so given.”   (Italics added.)   Here, neither the trial court nor the prosecutor corroborated counsel's representation that appellant would be granted probation if the psychological evaluation were favorable.  (See also People v. Reeves (1966) 64 Cal.2d 766, 776–777 [“purported misrepresentations by defense counsel that a specific sentence will be imposed are insufficient to vitiate a plea entered in reliance thereon;  there must also be apparent substantial corroboration of or connivance in such misrepresentations by a responsible public officer, relied on in good faith by the defendant, and the misrepresentations must actually operate to preclude the exercise of the defendant's free will and judgment”].)


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