PEOPLE v. CHERNOW

No. B217483.

THE PEOPLE, Plaintiff and Respondent, v. KENNETH M. CHERNOW, Defendant and Appellant.

Court of Appeals of California, Second District, Division Three.

Filed January 24, 2011.


Attorney(s) appearing for the Case

Fay Arfa for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

Kenneth M. Chernow entered a plea of guilty before preliminary hearing to 18 counts of possession of matter depicting a minor engaging in sexual conduct in violation of Penal Code section 311.4, subdivision (d) (possession of child pornography) in order to accept an indicated sentence of five years of felony probation on various conditions including service of 365 days in county jail.

Before Chernow entered the guilty plea, Chernow’s attorney indicated he had discussed the “pros and cons” of accepting the indicated sentence versus accepting a plea bargain offered by the People which involved pleading guilty to one count in exchange for 16 months in state prison. During the course of the hearing, the prosecutor indicated counts 2 through 18 would be dismissed when Chernow surrendered to serve the jail time. However, when Chernow surrendered, neither the prosecutor nor defense counsel was present and the trial court advised Chernow counts 2 through 18 had been stayed under Penal Code section 654 but had not been dismissed.

After Chernow served the jail time, he obtained new counsel and filed a combined motion to withdraw the guilty plea under Penal Code section 1018 on the grounds of ignorance and mistake, and a petition for writ of error coram nobis and/or habeas corpus seeking to vacate the guilty plea on the ground of ineffective assistance of counsel. Chernow also filed a petition for writ of habeas corpus seeking dismissal of counts 2 through 18.

The trial court granted the People’s motion to dismiss counts 2 through 18 but denied Chernow’s request to withdraw the guilty plea as to count 1. Chernow appealed the denial of his petition for writ of error coram nobis and the trial court issued a certificate of probable cause. We affirm the denial of the petition.

 

FACTUAL AND PROCEDURAL BACKGROUND

 

1. Entry of guilty plea.

A felony complaint filed August 16, 2007, charged Chernow with 18 counts of possession of child pornography in violation of Penal Code section 311.11, subdivision (a), a felony. Each count alleged that on July 21, 2007, Chernow possessed pornographic material depicting children under the age of 18 years engaged in sexual activity.

On March 17, 2008, Chernow, represented by privately retained counsel Michael Grodsky, entered an open plea to all 18 counts based upon the trial court’s indication it would grant Chernow formal probation for five years on condition, among other things, that he serve 365 days in the county jail and not have access to the Internet except in an employment situation.

The trial court indicated it wanted the record to reflect the reasons for its “sentencing choices.” The trial court noted “both sides have stated that . . . the maximum here is 3 years in state prison. The other — counts are [subject to Penal Code section] 654 with respect to each other. The defendant does not have any record.” The trial court stated the parties have indicated “the photos are very bad.” Therefore, “there needs to be a significant penalty here. And I think the 365 days accomplishes that.”

The trial court indicated another of its concerns was preventing any further offenses. The trial court stated it believed a five-year term of probation was more likely to prevent re-offense than the 16 month prison term offered by the People in exchange for a plea of guilty to one count, as the prison term would be completed in eight months. Therefore, from the standpoint of community safety and deterrence, the probationary term appeared to be most appropriate in this case. The trial court observed that Chernow might have elected to “just do the 16 months and get it over with” and stated it was certain defense counsel had “probably talked about all that; the pros and cons.” Defense counsel responded, “We have discussed that.”

Before accepting the plea, the trial court indicated that if Chernow violated probation, he could be sentenced to state prison “for up to 3 years which is the maximum confinement time on this case.” Chernow indicated he understood. The trial court further indicated that if Chernow failed to appear on the surrender date, he could be sentenced to the maximum term of three years in state prison. Chernow again indicated he understood.

Chernow then waived his rights, acknowledged he would be required to register as a sex offender and plead guilty to counts 1 through 18. The People initially agreed to dismiss the remaining counts at sentencing. When the trial court indicated the sentencing was going to occur immediately, the prosecutor responded, “all right.” The trial court then suspended imposition of sentence, granted Chernow probation for five years and ordered him to serve 365 days in the county jail with credit for two days already served.

After the trial court explained various other terms and conditions of probation, the prosecutor indicated the People would dismiss the remaining counts at surrender and defense counsel indicated no objection to that procedure. The trial court stated the remaining counts would be held in abeyance until surrender and ordered Chernow to appear in court to surrender to serve the county jail time on May 19, 2008.

2. Request to modify probation; surrender to serve jail time.

On May 8, 2008, Chernow filed a motion to modify the order granting probation to permit Chernow to participate in outpatient rehabilitation. On May 19, 2008, the trial court denied the motion and put the matter over to May 22, 2008 for surrender. On that date, Chernow surrendered. However, neither defense counsel nor the prosecutor was present in court. When Chernow asked if counts 2 through 18 had been dismissed, the trial court responded they had been stayed pursuant to Penal Code section 654 and were not dismissed. The trial court suggested Chernow seek further clarification from defense counsel.

3. Post judgment proceedings.

On February 26, 2009, Chernow, represented by the public defender, moved to modify the sentence. The matter was continued for further probation report and on April 28, 2009, the public defender was relieved and private counsel, Fay Arfa, substituted in as counsel for Chernow.

On May 12, 2009, Chernow filed a motion to vacate the guilty plea based on mistake and ignorance (Pen. Code, § 1018), and a concurrent petition for writ of error coram nobis and/or habeas corpus. The motion alleged Chernow improperly had been charged with 18 counts in that possession of multiple images of child pornography constitutes a single offense. (People v. Hertzig (2007) 156 Cal.App.4th 398, 401.) The motion asserted trial counsel rendered ineffective assistance in failing to advise Chernow of the maximum term of confinement and in failing to demurrer to the invalid counts. The motion contended Chernow erroneously believed that dismissal of 17 counts in exchange for his guilty plea constituted a substantial benefit. Further, although the law permitted Chernow to be charged with only one count, the prosecutor refused to dismiss the additional 17 counts until Chernow surrendered. In so doing, the prosecution held the 17 invalid counts over Chernow’s head as leverage against Chernow, further leading Chernow to believe he could be punished for 18 separate counts.

In support of the petition, Chernow declared that, at the time he entered the guilty plea, he believed he faced a three-year sentence on each of the 18 counts and a maximum term of 54 years in state prison. Chernow would not have plead guilty to all 18 counts had he known the maximum sentence on all 18 charges totaled three years and would not have plead guilty to all 18 counts had he known he could only be charged with one count. Chernow asserted counsel never discussed the maximum term of imprisonment, the fact that he could be charged only with a single count or the various charging and sentencing options that might occur if he took the case to trial. Had he properly been advised, Chernow would have taken the case to trial.

The People’s opposition set forth the procedural background of the case. It indicated that in 2007, Chernow, then a substitute teacher for the Los Angeles Unified School District, took his personal computer to Best Buy to have the hard drive repaired. A service technician found child pornography on the hard drive and notified the police who obtained a search warrant to inspect the computer. Forensic examination of the computer disclosed hours of video depicting sex between adults and children and an application to a “Big Brother” program. Chernow waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] and admitted he had down loaded child pornography from the Internet to his computer and that there were additional child pornography images on a computer at his residence. Chernow was arraigned on the complaint on August 21, 2007. He litigated discovery requests and protective orders and filed a motion to suppress evidence before accepting the trial court’s indicated sentence on March 17, 2008.

The People argued the motion to withdraw the plea was untimely under Penal Code section 1018. Further, the trial court, the prosecutor and defense counsel “discussed the import of Hertzig before [Chernow] changed his plea.” Also, the record disclosed that Chernow repeatedly was advised the maximum term of confinement he faced was three years in state prison.

On June 10, 2009, Chernow filed a petition for writ of habeas corpus seeking an order vacating the judgment on the ground he received ineffective assistance of counsel in pleading guilty to 18 counts when he could have been convicted on only one count. Chernow’s declaration in support of the petition indicated that, at the time he surrendered, the remaining counts were not dismissed as the prosecutor had promised. While in jail, Chernow attempted to contact defense counsel but did not receive a response. When Chernow was released from custody on October 20, 2008, defense counsel gave Chernow excuses as to why he could not take care of the dismissal of the 17 counts. Chernow conducted independent research, discovered he could only be charged with one count and retained new private counsel.

At the hearing on the motion, the prosecutor noted the felony complaint was filed before the opinion in People v. Hertzig, supra, 156 Cal.App.4th 398. Thus, the pleading was appropriate at the time it was filed. Further, the prosecutor represented that defense counsel, the trial court and the prosecutor discussed the impact of Hertzig when defense counsel asked for an indicated sentence. After receiving the indicated sentence, defense counsel decided not to pursue any appellate remedies or demur to the complaint. Further, Chernow’s maximum exposure of three years in prison clearly was stated on the record before Chernow plead guilty. The trial court granted the People’s motion to dismiss counts 2 through 18 but concluded Chernow had failed to show prejudice that would justify withdrawal of the guilty plea as to count 1 and denied the petition for writ of coram nobis/habeas corpus.

Chernow filed a notice of appeal from the trial court’s order. The trial court subsequently granted Chernow’s request for a certificate of probable cause.

CONTENTIONS

Chernow contends the trial court erroneously denied his request to withdraw his guilty plea. Chernow claims he made a showing of good cause and defense counsel rendered ineffective assistance in failing to advise Chernow of the maximum term of confinement and in failing to move to dismiss the 17 invalid counts.

DISCUSSION

1. Chernow fails to demonstrate error in the denial of the petition for writ of error coram nobis.

Chernow contends that, because each of the 18 counts alleged possession of child pornography on the same date, he properly could be charged with only one count, citing People v. Hertzig, supra, 156 Cal.App.4th 398. Under Hertzig at page 403, and a subsequent case, People v. Manfredi (2008) 169 Cal.App.4th 622, 634, possession of multiple images of child pornography constitutes a single offense. Thus, Chernow could only be convicted of one count of possession of child pornography and the law required dismissal of the 17 superfluous counts. Chernow asserts he would not have plead guilty to all 18 counts had he been advised that only a single count could be alleged and the maximum sentence was three years in state prison.

Chernow claims he plead guilty plea while operating under the mistaken belief he would get a reduced sentence and dismissal of 17 counts. However, he received no benefit in that 17 of the counts were subject to demurrer. He claims he demonstrated mistake and ignorance by clear and convincing evidence and thus was entitled to relief under Penal Code section 1018. (People v. Cruz (1974) 12 Cal.3d 562, 566.) He further asserts he is entitled to withdraw the plea because he was not advised of the direct consequences of the plea, thereby rendering the plea invalid. (People v. McCary (1985) 166 Cal.App.3d 1, 8-9.) He argues that, without appropriate advisement of the maximum term of confinement, Chernow could not knowingly and intelligently enter a valid guilty plea. Chernow concludes he improperly was induced to plead guilty and the trial court abused its discretion in denying the motion to withdraw the plea.

Initially, we note Chernow’s reliance on Penal Code section 1018 is misplaced. That section authorizes a trial court to permit a defendant to withdraw a plea of guilty, for good cause shown, “within six months after an order granting probation is made if the entry of judgment is suspended . . . .” The six-month limitation on the trial court’s authority is mandatory. (People v. Miranda (2004) 123 Cal.App.4th 1124, 1129-1134.) Here, Chernow was granted probation in March of 2008 and he did not seek to set aside the guilty plea until May of 2009. Consequently, the trial court lacked jurisdiction to grant Chernow’s motion under Penal Code section 1018.

The trial court did have jurisdiction to entertain a petition for writ of error coram nobis. The writ of error coram nobis applies “where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment . . . .” (People v. Kim (2009) 45 Cal.4th 1078, 1093; People v. Dubon (2001) 90 Cal.App.4th 944, 950.) We review a trial court’s denial of a petition for writ of error coram nobis for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192; People v. Dubon, supra, at p. 951; People v. Ibanez (1999) 76 Cal.App.4th 537, 544.) Under that standard, the trial court’s exercise of its discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)

“`”A mistake of fact” is where a person understands the facts to be other than they are; whereas a “mistake of law” is where a person knows the facts as they really are, but has a mistaken belief as to the legal consequences of those facts.'” (People v. LaMarr (1942) 20 Cal.2d 705, 710.)

Assuming for the sake of discussion the issue presented is a mistake of fact, as opposed to a mistake of law, no abuse of the trial court’s discretion appears. Chernow’s claim he believed he faced 54 years in state prison is refuted by the record. The trial court repeatedly indicated the maximum term of confinement Chernow faced was three years in state prison. In explaining the consequences of a violation of probation, the trial court advised Chernow he could be “sent to . . . state prison for up to 3 years which is the maximum confinement time on this case.”

This evidence also warrants rejection of Chernow’s claim he was not advised of the consequences of his guilty plea. “A defendant must understand the nature of the charges, elements of offenses, pleas and defenses which may be available and punishment which may be expected before a trial judge accepts his waiver and plea. [Citation.] However, in determining the facts [on a motion to withdraw a plea], the trial court is not bound by uncontradicted statements of the defendant.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) Here, as noted above, the record contradicted Chernow’s claim he believed he faced a maximum term of confinement of 54 years in state prison.

Further, at the hearing on the motion to withdraw the plea, the prosecutor represented that defense counsel was aware of the Hertzig case and the case had been discussed in chambers. After the discussion in chambers, defense counsel acknowledged, on the record, the “pros and cons” of the indicated sentence had been discussed with Chernow before Chernow agreed to accept a five-year grant of formal probation rather than spending 16 months in state prison.

Thus, the record reflects Chernow adequately was advised of the direct consequences of his plea. Moreover, even had Chernow been misadvised of the consequences of his guilty plea, he is entitled to relief only if he can establish prejudice as a result of the misadvisement, i.e., that he would not have entered the plea of guilty had the trial court given a proper advisement. (In re Moser (1993) 6 Cal.4th 342, 352.)

Nothing in the record reflects the additional 17 counts played any part in Chernow’s decision to plead guilty in exchange for a grant of probation. As indicated above, the record indicates Chernow knew the maximum term of confinement on 18 counts was the same as it would have been on one count. Further, under the plea bargain and the indicated sentence, counts 2 through 18 were going to be dismissed. Thus, the superfluous counts had no direct penal consequence in that they did not increase the punishment Chernow faced. Consequently, Chernow cannot demonstrate a reasonable probability he would not have accepted the indicated sentence had the trial court advised him of the legal insufficiency of counts 2 through 18.

Chernow resists this conclusion and argues the prosecutor’s refusal to dismiss the 17 inappropriate counts until Chernow surrendered led Chernow to believe he could be punished for each separate count. He further asserts the prosecutor’s refusal to dismiss the counts until Chernow surrendered constitutes an acknowledgment the parties did not consider the 17 counts invalid. Although the trial court noted the maximum term of imprisonment would be three years because the other counts would be subject to Penal Code section 654, Chernow argues the record does not reflect that he knew the significance of this remark. He also claims it cannot be assumed the disposition offered him would have been the same had there been only one count rather than 18 counts. (People v. Macguire (1998) 67 Cal.App.4th 1022, 1032.)

These arguments are unconvincing. The prosecutor’s decision not to dismiss counts 2 through 18 until Chernow surrendered does not detract from the repeated admonitions that Chernow could not be punished on those counts. Further, the advisement that Chernow could not be sentenced to state prison for more than three years on his plea of guilty to 18 counts essentially conveyed to Chernow the application of Penal Code section 654 in this case. Although the reason why Chernow could not be punished on counts 2 through 18 was not grounded in Penal Code section 654, the fact remains that Chernow correctly was advised of the maximum term of confinement.

With respect to Chernow’s claim he would have been offered a more favorable disposition had he been charged with only one count, we note the trial court indicated, before it accepted Chernow’s plea, that the parties had represented to the trial court the material Chernow possessed was “very bad.” Based thereon, the trial court believed Chernow should be subjected to a “significant penalty,” which was accomplished by serving 365 days in jail. Because the amount and egregiousness of the child pornography Chernow possessed remained the same, the number of counts he faced cannot be seen as having had an impact on the plea bargain offered by the People or the trial court’s indicated sentence.

The case cited by Chernow, People v. Macguire, supra, 67 Cal.App.4th at page 1032, is distinguishable. In Macguire, a defendant who committed identity theft plead no contest to one count of perjury (Pen. Code, § 118) and four counts of making a false financial statement (Pen. Code, § 532a, subd. (1)) in order to obtain an indicated sentence. The perjury count was based on the defendant’s conduct in obtaining a false driver’s license. Two counts of violating Penal Code section 532a, subdivision (1), were based on the submission of false financial information in obtaining a motorcycle and a car, and the other two counts were based on the submission of false financial information in apartment rental applications. However, the submission of false financial information in connection with the apartment rental applications did not violate that section.

On appeal, the defendant argued defense counsel should have filed a motion to dismiss the two invalid counts. The defendant claimed he would not have plead no contest to those counts had he been properly advised. The People argued the defendant would have been offered the same “`bargain had he been facing three potential sentences instead of five.'” (People v. Macguire, supra, 67 Cal.App.4th at p. 1031.) Macguire rejected this argument because trial counsel’s declaration submitted in support of a petition for writ of habeas corpus indicated counsel believed all of the counts had legal merit. Further, acknowledging “trial court realities,” Macguire noted that, “[i]n resolving cases, the number and types of charges are considered.” (Id. at p. 1032.)

Here, there is no declaration from defense counsel and what evidence there is in the record in the form of the prosecutor’s representations indicate the parties were aware of the impact of Hertzig before Chernow plead guilty. Additionally, under both the plea bargain offered by the People and the trial court’s indicated sentence, counts 2 through 18 were going to be dismissed, whether it occurred at the time of sentencing or at the time of surrender. Although that did not in fact occur when Chernow surrendered, that unfortunate circumstance was attributable to the absence of the prosecutor and defense counsel at the time Chernow surrendered rather than any claimed validity of those counts. Further, unlike the defendant in Macguire who faced various charges based on separate and distinct acts, each of which would have supported a consecutive term of imprisonment, the parties in this case agreed Chernow could only be punished for one count of possession of child pornography regardless of the number of counts alleged. Thus, Macguire does not assist Chernow.

In sum, no abuse of the trial court’s discretion appears in the denial of Chernow’s petition for writ of error coram nobis.

2. Chernow fails to demonstrate ineffective assistance of counsel.

Chernow contends the motion to withdraw the plea should have been granted because trial counsel rendered ineffective assistance. Chernow asserts defense counsel failed to advise him of the maximum term of confinement and failed to move to dismiss the 17 invalid counts. Chernow claims there can be no rational tactical purpose for failing to move to dismiss invalid charges before entering into a plea agreement. (People v. Plager (1987) 196 Cal.App.3d 1537, 1543.) Chernow further asserts nothing in the record indicates defense counsel discussed with Chernow the fact he could only be charged with a single count of possession of child pornography or the various charging and sentencing options that might occur had the case been taken to trial. Chernow asserts he would not have entered a guilty plea to 18 counts had he properly been advised. (In re Alvernaz (1992) 2 Cal.4th 924, 933; In re Vargas (2000) 83 Cal.App.4th 1125, 1139.)

Chernow claims other cases involving defendants with no prior criminal record demonstrate he likely would have received a probationary sentence had he properly been charged. (See Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402 [defendant granted three years probation with 90 days in county jail following conviction by jury of six counts of misdemeanor possession of child pornography]; People v. Luera (2001) 86 Cal.App.4th 513 [defendant granted probation following conviction at court trial of felony possession of child pornography]; People v. Harrisson (2005) 134 Cal.App.4th 637 [defendant granted probation with 150 days in jail following plea of no contest to one count of felony possession of child pornography based on possession of four computers containing same]).

Chernow concludes that, on this additional basis, the trial court should have granted the motion to withdraw the plea. (People v. Johnson (1995) 36 Cal.App.4th 1351, 1356.)

We are not persuaded.

In order to prevail on a claim of ineffective assistance of counsel, Chernow must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and that, absent counsel’s error, a more favorable result is reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692, 694 [80 L.Ed.2d 674]; In re Alvernaz, supra, 2 Cal.4th at pp. 936-937.) “`”Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.'” [Citations.]'” (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Hinton (2006) 37 Cal.4th 839, 876.)

The defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. (Id. at pp. 266-267.)

A petition for writ of error coram nobis is an inappropriate vehicle by which to raise a claim of ineffective assistance of counsel. (See People v. Kim, supra, 45 Cal.4th at pp. 1095, 1104; People v. Soriano (1987) 194 Cal.App.3d 1470, 1477.)

Here, Chernow filed a petition for writ of error coram nobis/habeas corpus in the trial court. Although an order denying a petition for writ of error coram nobis is appealable, a petition for writ of habeas corpus is not. Rather, the petitioner must file a new habeas petition in this court. Chernow has failed to do so. However, even if this procedural deficiency is overlooked, Chernow’s contentions fail.

Regarding Chernow’s claim that counsel’s representation fell below an objective standard of reasonableness, we note the record does not include a declaration from trial counsel regarding the communication between counsel and Chernow or counsel’s decision not to demur to the complaint. However, the record does reflect that defense counsel discussed with Chernow the pros and cons of accepting the trial court’s indicated sentence rather than the plea bargain offered by the People. Also, the prosecutor represented to the trial court, in the People’s opposition to Chernow’s motion and at the hearing on the motion, that Hertzig was discussed in chambers before Chernow entered the guilty plea. Additionally, Chernow repeatedly was advised of the maximum term of confinement and, whether Chernow accepted the plea bargain or the indicated sentence, counts 2 through 18 were going to be dismissed. Under these circumstances, counsel reasonably might have declined to demur to these counts, seeing it as an idle act.

Additionally, the record reasonably permits the inference defense counsel discussed with Chernow the various sentencing options that might occur if Chernow took the case to trial and lost in that he would either be sentenced to prison for as much as the maximum term of three years in state prison, or he would receive a grant of probation. Because both of these options were discussed on the record before Chernow entered the guilty plea, he cannot credibly claim these options were not discussed with him.

We therefore conclude Chernow has failed to establish that defense counsel’s performance in connection with the acceptance of the indicated sentence was deficient. Moreover, Chernow fails to demonstrate prejudice. That is, even had defense counsel moved to dismiss the 17 invalid counts or advised Chernow he could only be charged with one count, there is no credible evidence that indicates Chernow would not have entered a guilty plea to count 1 in order to obtain a grant of probation and avoid a prison term.

In Alvernaz, the leading case in the area of ineffective assistance of counsel in pretrial negotiations, the defendant rejected a plea bargain offered by the People and was convicted. He filed a petition for writ of habeas corpus in which he asserted defense counsel rendered ineffective assistance in advising him to take the case to trial. Alvernaz stated “a defendant’s self-serving statement — after trial, conviction, and sentence — that with competent advice he or she would 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 re Alvernaz, supra, 2 Cal.4th at p. 938.)

Here, Chernow accepted the indicated sentence. We therefore paraphrase Alvernaz to require Chernow to demonstrate he would not have accepted the indicated sentence had he properly been advised. However, he has failed to do so. Indeed, Chernow’s self-serving declaration, rather than being corroborated independently by objective evidence, is contradicted by the record. Thus, the record fails to establish Chernow would not have accepted the indicated sentence had he been advised of all the particulars he claims were omitted.

We decline to engage in comparative analysis of the disposition achieved in Chernow’s case and the results obtained in the cases cited by Chernow. In any event, because Chernow was granted probation, the result in this case cannot be viewed as disparate.

For all the foregoing reasons, Chernow’s claim of ineffective assistance of counsel must be rejected.

DISPOSITION

The order denying the petition for writ of error coram nobis is affirmed.

We concur:

KITCHING, J.

ALDRICH, J.