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People v. Burkett6/28/2002
he had served four-fifths of his sentence"].)
Finally, even assuming the prosecutor misadvised Burkett as to the availability of credits, or assuming Burkett's counsel rendered ineffective assistance by failing to explain that he could not use credits to reduce the indeterminate sentence, Burkett has failed to show prejudice. " defendant (even on direct appeal) is entitled to relief based upon a trial court's misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement. [Citation.]" (In re Moser (1993) 6 Cal.4th 342, 352.) Similarly, as to the ineffective assistance of counsel claim, "a defendant who pled guilty demonstrates prejudice caused by counsel's incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial. [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 253.) The only evidence of prejudice Burkett offers is his bare assertion that he would not have accepted the plea agreement if he had been known he would be ineligible for parole before serving 25 years. But the defendant's assertion alone is not enough to establish prejudice. Rather, the assertion " `must be corroborated independently by objective evidence.' [Citations.]" (Ibid.; see In re Alvernaz (1992) 2 Cal.4th 924, 938 [" defendant's self-serving statement-after trial, conviction, and sentence-that with competent advice he or she would [or would not] have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence"].)
In considering the issue of prejudice, "an appellate court . . . may consider the probable outcome of any trial, to the extent that may be discerned. [Citations.]" (In re Resendiz, supra, 25 Cal.4th at p. 254.) Had Burkett chosen to reject the plea agreement and proceed to trial, the outcome would likely have been worse than the outcome of his plea. The agreement allowed Burkett to escape prosecution on one felony and two misdemeanor counts relating to the incident, as well as two separate drug possession cases. Burkett had no strong defense to the charges against him: He admitted he was driving, and forensic evidence clearly showed he was speeding and highly intoxicated. Given the prior offenses and additional charges against him, Burkett would have risked being sentenced to an even greater minimum term in prison. In light of the circumstances, Burkett has not carried his burden of showing prejudice.
DISPOSITION
The petition for writ of habeas corpus is denied. The judgment is affirmed.
We concur:
McGuiness, P. J.
Corrigan, J.
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