In re Smith CA2/7 ( 2022 )

Filed 9/15/22 In re Smith CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
B314243
In re KALEAH SMITH,
(Los Angeles County
Super. Ct. No. NA103415)
on Habeas Corpus.
On petition for writ of habeas corpus. Petition granted.
Richard B. Lennon and Suzan E. Hier, under appointment
by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General and Idan Ivri, Deputy Attorney General for
Respondent.
____________________________
INTRODUCTION
In 2018 Kaleah Smith pleaded no contest to first degree
murder and attempted willful, deliberate, and premeditated
murder. Smith later unsuccessfully sought to withdraw her plea.
Her efforts to seek appellate review were also unsuccessful.
Smith filed a petition for writ of habeas corpus in the
Supreme Court, arguing her trial counsel provided ineffective
assistance because he did not advise her accurately about her
eligibility for a youth offender parole hearing under Penal Code
section 3051.1 The Supreme Court ordered the Secretary of the
Department of Corrections and Rehabilitation to show cause,
returnable in this court, why Smith “is not entitled to relief based
on her claim that trial counsel rendered ineffective assistance
during plea negotiations either by failing to advise her or by
misadvising her as to her parole eligibility under . . .
section 3051, subdivision (b)(3).” We grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Smith Pleads No Contest to Murder and Attempted
Murder
In November 2015, when Smith was 22 years old, she went
with several friends to a housing project, where one of the friends
shot at two people sitting on some stairs. One of the two victims
died. (People v. Alvarado (Feb. 22, 2021, B298355 [nonpub. opn.];
People v. Smith (June 18, 2020, B295351) [nonpub. opn.]), review
den. Sept. 9, 2020, S263561.)
1 Statutory references are to the Penal Code.
2
The People charged Smith with first degree murder (§ 187,
subd. (a)) and attempted willful, deliberate, and premediated
murder (§§ 187, subd. (a), 664). The People alleged that Smith
committed the offenses for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to
promote, further, or assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)(C)) and that a principal personally and
intentionally discharged a firearm causing great bodily injury or
death (§ 12022.53, subds. (d) and (e)(1)).
On January 17, 2018, the day of trial, Csaba Palfi, Smith’s
trial counsel, informed the court that Smith had agreed to a
negotiated disposition. The court told Smith that she would be
pleading “open to the sheet”2 and that the court “ultimately”
would sentence her to a prison term of 25 years to life. The
prosecutor stated the charges and allegations and asked Smith a
series of questions, including whether she understood that, by
pleading no contest to “the entire sheet,” she would be pleading
no contest to all the charges and admitting all the allegations;
whether she understood the sentence would be a prison term of
25 years to life; whether she wanted to give up her constitutional
rights that accompany a criminal trial; and whether she was
pleading no contest freely and voluntarily because she believed it
was in her best interest to do so. Smith answered “Yes” to each of
the court’s questions.
Smith pleaded no contest to first degree murder and
attempted willful, deliberate, and premeditated murder and
admitted the gang and firearm allegations. The trial court found
2 To “plead to the sheet” means to plead guilty to all counts
and to admit all enhancement allegations. (People v. Codinha
(2021) 71 Cal.App.5th 1047, 1059.)
3
that Smith “knowingly, understandingly, and intelligently”
waived her constitutional rights and that she entered her plea
“freely and voluntarily” with “an understanding of the nature and
the consequences thereof.”
B. Smith Attempts To Withdraw Her Plea
Two months after Smith pleaded no contest, she sought to
have the court relieve Palfi and to withdraw her plea. At a
hearing on Smith’s request to change her appointed counsel
under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), Smith
stated that Palfi’s advice caused her to plead “under a mental
state of duress” and that she wanted her plea to be “reconsidered,
withdrew, and retracted.” Recounting his conversations with
Smith before the plea, Palfi told the court that he discussed with
Smith her rights to go to trial and to testify and that he advised
her that “to have a chance with the jury she would have to
testify.” Palfi stated that, after speaking with the prosecutor on
the day of trial, he informed Smith the offer “was 25 to life.” Palfi
said he told Smith there was a “possibility of a parole hearing
according to the Franklin case” because she “was under 23” years
old when she committed the crimes.3 Palfi said he explained to
3 In People v. Franklin (2016) 63 Cal.4th 261, at pages 277,
280 and 286, the California Supreme Court held the enactment of
section 3051, “which requires the Board [of Parole Hearings] to
conduct a ‘youth offender parole hearing,’” mooted the
defendant’s “challenge to his original sentence” under the United
States Supreme Court’s decision in Miller v. Alabama (2012)
567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407], which held
“mandatory life without parole for those under the age of 18 at
the time of their crimes violates the Eighth Amendment’s
4
Smith that “[i]t was in that range, Franklin set forth, 16 years to
23 years” and that Franklin gave Smith the right to a hearing,
but “not a guaranteed parole date,” which “would be dependent
on . . . how well she did in prison.” Palfi said he informed Smith
that, if she did her best in prison, “she would have an
opportunity” for parole, but that, “if we went to trial and lost,
then pretty much there was no opportunity. It would be a
50-years-plus sentence.” The trial court construed Smith’s
statements as “a motion that says that [Palfi] ineffectively
represented her in the plea negotiations and that she would not
have pled.” The court denied Smith’s request to replace Palfi.
Five months later, Smith again asked the court to replace
Palfi. At the hearing on her second request under Marsden,
Smith stated that Palfi misrepresented the offer from the
prosecutor and that she would not have accepted the offer had
she known she would be pleading to first degree murder instead
of second degree murder. Palfi again recounted his discussions
with Smith before her plea. Palfi stated that he knew the
prosecutor would try to depict Smith as “the ringleader” and that
he reviewed with Smith questions the prosecutor might ask her if
she testified. Palfi stated that, on the day of trial, he asked
prohibition on ‘cruel and unusual punishments’” (id. at p. 465; see
Stats. 2013, ch. 312, § 4). Palfi’s reference to Franklin may have
been a shorthand reference to the provisions of the legislation
that enacted section 3051. “A Franklin proceeding gives ‘an
opportunity for the parties to make an accurate record of the
juvenile offender’s characteristics and circumstances at the time
of the offense so that the Board, years later, may properly
discharge its obligation to “give great weight to” youth-related
factors [citation] in determining whether the offender is “fit to
rejoin society.”’” (In re Cook (2019) 7 Cal.5th 439, 449.)
5
Smith if she wanted to settle her case. Palfi said he told Smith
the likelihood the prosecutor would agree to the same sentence
she offered Zariah McCollum, one of Smith’s codefendants, “was
slim” to “none,”4 but suggested they could ask if the prosecutor
would agree to second degree murder, which would mean a
sentence of 15 years to life. Palfi admitted he “made a mistake”
and explained: “For some unknown reason, I was stuck on that,
that she would be entitled to a [youth offender parole] hearing in
15 years . . . . That was the mistake. But I think the mistake has
been rectified . . . by the subsequent plea that she entered into.”
The court found Palfi did not do “anything wrong in this case,”
but relieved him as Smith’s counsel because of “irreconcilable
conflict” between the two of them.
On September 4, 2018 Smith, represented by new counsel,
filed a motion under section 1018 to withdraw her plea. Smith
claimed she entered a plea “to charges and consequences that
were not expected by her, explained [to her], understood by her,
and all against her free will.” Smith asserted she labored “under
a mistake as to the seriousness of the consequences of conviction”
and “felt pressured by all involved and her attorney to take the
‘deal’ without having sufficient time to digest and contemplate
the ramifications of her plea.” Smith attached correspondence
between her and Palfi, including two memoranda Palfi had
written her.
4 As part of her plea bargain, McCollum agreed to testify for
the prosecution, which she did in the trial of Smith’s other
codefendant, Alejandro Alvarado. A jury convicted Alvarado of
first degree murder and attempted willful, deliberate, and
premeditated murder and found firearm allegations true. (People
v. Alvarado (Feb. 22, 2021, B298355) [nonpub. opn.].)
6
In the first memorandum, which Palfi wrote on January 17,
2018 (the day of Smith’s plea), Palfi summarized his assessment
of the strengths and weaknesses of the case. Palfi stated Smith
was “facing basically two life terms” and suggested asking the
prosecutor to settle the case by having Smith plead to second
degree murder and admit the gang allegation. Palfi told Smith
that, if a jury convicted her of first degree murder and attempted
murder, she “would be looking at 50 years and that is without the
gun or gang enhancements.” Palfi stated: “However, the bright
spot in all of this is a new case . . . which directs the Board of
Prisons[5] to hold a parole hearing on cases as yours to determine
when you might or would get out. There are NO promise[s] of
release[,] just a hearing after 15 years, that could be at 85% or
100% of your time and I am not sure. Why? Because it is a new
law on the books and everyone is scrabbling to figure it out.”
In the second memorandum, which Palfi wrote
approximately six months later, Palfi recounted the
circumstances surrounding Smith’s decision to plead no contest:
Palfi informed Smith the prosecutor would only accept a plea to
first degree murder and an admission to the gang allegation, “for
a total of thirty-five years.” Palfi told Smith that he “wasn’t
certain” when she would be eligible for a parole hearing under
“these circumstances.” After the plea, Palfi called Smith’s
husband and “mistakenly” told him that Smith had pleaded to
second degree murder and that she would be eligible for a parole
hearing in 15 years. When Palfi went to see Smith a few weeks
later, he made the same mistake of “conflating” the right to a
5 The Board of Parole Hearings replaced the Board of Prison
Terms in July 2005. (See § 5075, subd. (a); In re Shaputis (2008)
44 Cal.4th 1241, 1245, fn. 1.)
7
parole hearing with Smith’s sentence of “25 to life” and told
Smith that she had pleaded to second degree murder.
At the hearing on Smith’s motion to withdraw her plea
under section 1018, Palfi testified that, on the day of the plea, he
spoke to the prosecutor and conveyed to Smith the offer of
pleading to first degree murder and accepting a sentence of 25
years to life. Palfi said Smith “absolutely” was “cognizant of” the
prosecutor’s offer. Palfi recalled that, when he went to see Smith
after the plea, “one of the first things” she told him was “I pled to
25. I plead to first degree.”
Smith testified that, when Palfi advised her the “best that
we could do” was for her to plead no contest to second degree
murder for a sentence of 15 years, plus 10 years for the gang
enhancement, she told him she “would take that.” Smith stated
Palfi never informed her that the prosecutor rejected the
defense’s offer of second degree murder. Smith explained that,
when the prosecutor told her she would be sentenced to 25 years
to life, she thought that meant the sentence was a term of 15
years to life, plus 10 years for the gang enhancement.
The trial court recalled that, when Smith entered her plea,
the court found her plea was “knowing, voluntary, and
intelligently made.” The court stated, “There’s nothing that’s
been presented to change my mind on that.” The court found
that Palfi made “quite clear” to Smith the prosecutor’s offer
required her to plead to first degree murder and that, as
evidenced by the “consistent things” she said after the plea,
Smith “seemed very clear on it.” The court concluded that, while
Smith had “some belief from somewhere that it was second
degree” murder, she consistently stated her sentence “was at
least 25 years.” The court denied Smith’s motion to withdraw her
8
plea and sentenced her under the plea agreement to a prison
term of 25 years to life on the murder conviction. The court also
imposed and stayed execution of a life term on the attempted
murder conviction and terms on the firearm and gang
enhancements. The court also imposed assessments, a booking
fee, a restitution fine, and a victim restitution award.6
C. Smith Seeks Appellate Relief
Smith filed a notice of appeal and a statement requesting a
certificate of probable cause under section 1237.5. Smith stated
she “was sentenced to 25 years to life for murder in the first
degree due to the mistakes of Mr. Palfi’s errors” and was
misadvised about the terms of her plea. The trial court denied
Smith’s request for a certificate of probable cause, finding she
had “no basis for appeal.”
Smith then filed a petition for writ of mandate in this court,
asking us to direct the trial court to issue a certificate of probable
cause to allow her to appeal the denial of her motion to withdraw
her plea. We denied the petition for writ of mandate, and the
Supreme Court denied Smith’s petition for review. (Smith v.
Superior Court (July 11, 2019, B298049), review den. Aug. 21,
2019, S256907.)
Smith next filed a petition for writ of habeas corpus in this
court, contending Palfi provided ineffective assistance. Smith
asserted Palfi’s erroneous or incomplete advice caused her to
6 Smith appealed the order imposing the assessments,
booking fee, restitution fine, and victim restitution award. We
affirmed, and the Supreme Court denied Smith’s petition for
review. (People v. Smith, supra, B295351; People v. Smith, supra,
S263561.)
9
plead no contest, which she would not have done had Palfi
properly advised her that section 3051 applied to her even if she
decided to go to trial. We summarily denied Smith’s petition. (In
re Smith (June 17, 2020, B306272).)
Finally, Smith filed a petition for writ of habeas corpus in
the Supreme Court, making the same claims she made in the
petition for writ of habeas corpus she filed in this court.7 The
Secretary filed an informal response, arguing that the petition
was procedurally barred and that Palfi did not provide ineffective
assistance. The Supreme Court directed the Secretary to show
cause, returnable before this court, why Smith was not entitled to
relief based on her claim Palfi failed to advise her or misadvised
her about her parole eligibility under section 3051, subdivision
(b)(3). (In re Kaleah Smith on Habeas Corpus (August 11, 2021,
S266965).)
D. This Court Orders a Referee To Conduct an
Evidentiary Hearing
The Secretary filed a return to Smith’s petition, and Smith
filed a traverse. After reviewing the parties’ submissions, we
directed the Presiding Judge of the Los Angeles County Superior
Court to appoint a referee to conduct an evidentiary hearing and
make recommended findings of fact on what Palfi advised Smith
about the terms of her plea, whether Smith understood at the
time of her plea she was pleading to first degree murder with a
sentence of 25 years to life, what Palfi advised Smith about
7 Smith also claimed the attorney who represented her at the
sentencing hearing (not Palfi) provided ineffective assistance by
failing to object to the court’s imposition of a $3,106.50 victim
restitution award.
10
section 3051 if Smith pleaded no contest to first degree murder,
and what Palfi advised Smith about section 3051 if a jury
convicted her on all the charges.
The referee conducted an evidentiary hearing. Smith and
the prosecutor testified, but Palfi had died before the hearing.
The referee made the following findings: (1) Palfi advised Smith
the prosecutor rejected Smith’s offer to plead no contest to second
degree murder, and Palfi conveyed to Smith the prosecutor’s offer
to have Smith plead to all the charges on the “sheet” and receive
a sentence of 25 years to life; (2) Smith agreed to “take the deal”
and understood that “she was pleading to first degree murder at
the time of the plea” and that her sentence would be 25 years to
life; (3) there “is no way to know” what Palfi “might have testified
to telling Smith” about section 3051 if Smith pleaded no contest
to first degree murder, although (the court inferred) if Palfi said
anything on this topic, “it would have logically been different
than the parole hearing date for second degree murder”; and
(4) Smith did not recall Palfi “saying anything about her
eligibility under section 3051” if a jury convicted her on all the
charges, and Palfi did not testify about this issue at the hearing
on Smith’s motion to withdraw her plea and “now is unavailable.”
DISCUSSION
A. Smith’s Petition Is Not Procedurally Barred
The Secretary contends that, because Smith “fully
litigated” her claim of ineffective assistance of counsel in her
motion to withdraw her plea and the trial court denied her
11
request for a certificate of probable cause under section 1237.5,8
Smith may not “raise a habeas claim alleging ineffective
assistance of counsel in connection with a plea negotiation in
order to circumvent the denial of a certificate of probable cause
on the same claim.” Smith contends that the allegations in her
petition differ from those in her motion to withdraw her plea and
that, because the record of the motion to withdraw the plea did
not reflect whether Palfi had a tactical reason for his omissions,
the petition provides an opportunity to address those issues.
The decision by the Supreme Court to issue an order to
show cause in this case disposes of the Secretary’s procedural-bar
argument. The “issuance of an order to show cause indicates the
Supreme Court has determined the claim is not procedurally
barred.” (In re Smith (2020) 49 Cal.App.5th 377, 386; see In re
Taylor (2019) 34 Cal.App.5th 543, 554 [“‘[w]ere there a valid
procedural bar, we would have expected [our state] Supreme
Court to deny the petition rather than issuing an order to show
cause returnable before this court’”]; In re Ramirez (2019)
32 Cal.App.5th 384, 406, fn. 11 [same].) The Secretary made the
same procedural argument in her informal response to Smith’s
petition for writ of habeas corpus before the Supreme Court, and
8 Section 1237.5 states: “No appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or
nolo contendere . . . except where both of the following are met:
[¶] (a) The defendant has filed with the trial court a written
statement . . . showing reasonable constitutional, jurisdictional,
or other grounds going to the legality of the proceedings.
[¶] (b) The trial court has executed and filed a certificate of
probable cause for such appeal with the clerk of the court.” (See
People v. Stamps (2020) 9 Cal.5th 685, 694; People v. Johnson
(2009) 47 Cal.4th 668, 676.)
12
the Supreme Court issued an order to show cause. We see no
reason to question the Supreme Court’s implicit ruling there is no
procedural bar to hearing Smith’s petition. (See Maas v. Superior
Court (2016) 1 Cal.5th 962, 974 [“[i]f the court determines that
the petition states a prima facie case for relief on a claim that is
not procedurally defective, the court issues the writ of habeas
corpus, or an order to show cause”].)9
Moreover, because “claims of ineffective assistance are
often more appropriately litigated in a habeas corpus proceeding,
the rules generally prohibiting raising an issue on habeas corpus
that was, or could have been, raised on appeal [citations] would
not bar an ineffective assistance claim on habeas corpus.” (People
v. Tello (1997) 15 Cal.4th 264, 267; see In re Robbins (1998)
18 Cal.4th 770, 814, fn. 34 [argument that a claim should have
been raised on appeal or that a claim was raised and rejected on
appeal does not apply “to claims of ineffective assistance of trial
counsel even if the habeas corpus claim is based solely upon the
appellate record”].) Smith did not raise the issue of Palfi’s
incomplete or inaccurate advice about section 3051 in her motion
to withdraw her plea. Indeed, as stated in our order for an
evidentiary hearing, “‘no inquiry was made’” at the hearing on
Smith’s motion to withdraw her plea into whether Palfi advised
Smith section 3051 applied. And the trial court did not make any
findings on whether Palfi failed to advise, or misadvised, Smith
9 This procedural history distinguishes this proceeding from
In re Chavez (2003) 30 Cal.4th 643 and In re Brown (1973)
9 Cal.3d 679, disapproved on another ground by People v. Mendez
(1999) 19 Cal.4th 1084, 1097, the two cases on which the
Secretary principally relies. The Supreme Court in those cases
did not issue an order to show cause.
13
on the applicability of section 3051, nor did the court make any
rulings on whether Palfi’s representation was constitutionally
ineffective. Contrary to the Secretary’s argument, Smith did not
fully litigate her claim Palfi rendered ineffective assistance when
he advised her about the ramifications of pleading no contest
versus going to trial. A habeas proceeding gives Smith the
opportunity and ability to supplement the record with evidence
Palfi gave incomplete or incorrect advice about section 3051. (See
People v. Hoyt (2020) 8 Cal.5th 892, 958 [“[u]sually, ‘ineffective
assistance [of counsel claims are] more appropriately decided in a
habeas corpus proceeding’”]; People v. Johnson (2009) 47 Cal.4th
668, 684 [“Generally, if it cannot be determined from the record
whether counsel had a reasonable strategic basis for acting or
failing to act in the manner challenged, a claim of ineffective
assistance ‘is more appropriately decided in a habeas corpus
proceeding.’”]; People v. Cotton (1991) 230 Cal.App.3d 1072, 1083
[where a “claim of ineffective assistance of counsel relies on
matters outside the appellate record, a petition for habeas corpus
is a proper vehicle for getting the matter before the court”].)
B. Trial Counsel Rendered Ineffective Assistance
1. Applicable Law
a. Ineffective Assistance of Counsel
“To demonstrate ineffective assistance of counsel,” a
defendant “‘must show that counsel’s performance was deficient,
and that the deficiency prejudiced the defense.’” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165; see In re Long (2020)
10 Cal.5th 764, 773 [defendant must show counsel’s action or
14
omission “‘fell below an objective standard of reasonableness’
[citations] in light of ‘the professional norms prevailing when the
representation took place’” and “‘a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different’”].) The two-part test under
Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80
L.Ed.2d 674] (Strickland) “applies to challenges to guilty pleas
based on ineffective assistance of counsel.” (Hill v. Lockhart
(1985) 474 U.S. 52, 58 [106 S.Ct. 366, 88 L.Ed.2d 203]; see In re
Alvernaz (1992) 2 Cal.4th 924, 934 [“in order successfully to
challenge a guilty plea on the ground of ineffective assistance of
counsel, a defendant must establish not only incompetent
performance by counsel, but also a reasonable probability that,
but for counsel’s incompetence, the defendant would not have
pleaded guilty and would have insisted on proceeding to trial”];
People v. Montoya (2021) 68 Cal.App.5th 980, 998 [same].)
The standard for judging counsel’s representation “‘is a
most deferential one.’ [Citation.] We ‘must indulge a “strong
presumption” that counsel’s conduct falls within the wide range
of reasonable professional assistance because it is all too easy to
conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight.’ [Citation.] ‘Unlike
a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted
with the client, with opposing counsel, and with the judge.’
[Citation.] Accordingly, we must ‘reconstruct the circumstances
of counsel’s challenged conduct, and . . . evaluate the conduct
from counsel’s perspective at the time.’” (In re Long, supra,
10 Cal.5th at pp. 773-774; accord, People v. O’Hearn (2020)
57 Cal.App.5th 280, 294.) The defendant “‘must overcome the
15
presumption that, under the circumstances, the challenged action
“might be considered sound trial strategy.”’” (In re Gay (2020)
8 Cal.5th 1059, 1073.)
“Because a petition for a writ of habeas corpus is a
collateral attack on a presumptively final criminal judgment,” the
defendant “bears the burden of proving his entitlement to relief
by a preponderance of the evidence. [Citations.] The referee’s
factual findings are ‘entitled to great weight where supported by
substantial evidence.’ [Citations.] Those findings are not,
however, conclusive, and ‘we can depart from them upon
independent examination of the record even when the evidence is
conflicting.’ [Citations.] The ultimate responsibility for
determining whether [the petitioner] is entitled to relief rests
with” the reviewing court. (In re Gay, supra, 8 Cal.5th at
pp. 1072-1073; accord, In re Lewis (2018) 4 Cal.5th 1185, 1191.)
b. Section 3051
Section 3051, subdivision (b)(3), provides: “A person who
was convicted of a controlling offense that was committed when
the person was 25 years of age or younger and for which the
sentence is a life term of 25 years to life shall be eligible for
release on parole at a youth offender parole hearing during the
person’s 25th year of incarceration.” (See People v. Franklin
(2016) 63 Cal.4th 261, 277 (Franklin).) “As originally enacted,
section 3051 referred to offenses committed before the offender
was 18 years old. The age was raised to 23 years by an
amendment that became effective on January 1, 2016.” (In re
Trejo (2017) 10 Cal.App.5th 972, 981, fn. 6; see Stats. 2015,
ch. 471, § 1.) “The section was later extended to offenders who
were ‘under age 26 when they committed their crimes.’” (People
16
v. Benzler (2021) 72 Cal.App.5th 743, 748; see Stats. 2017,
ch. 675, § 1.)
Thus, at the time of Smith’s plea, section 3051 provided
that defendants like Smith who were under 23 years old when
they committed their crimes would be entitled to a youth offender
parole hearing during their 25th year of incarceration. The
Supreme Court explained that, for “those juvenile offenders
eligible for youth offender parole hearings, the provisions of
Senate Bill No. 260,” which added section 3051 to the Penal Code,
“are designed to ensure they will have a meaningful opportunity
for release no more than 25 years into their incarceration.”
(Franklin, supra, 63 Cal.4th at p. 277; see In re Trejo, supra,
10 Cal.App.5th at p. 981.) Section 3051 thus “effectively reforms
the parole eligibility date of a juvenile offender’s original
sentence so that the longest possible term of incarceration before
parole eligibility is 25 years.” (Franklin, at p. 281; see In re Cook
(2019) 7 Cal.5th 439, 449 [same]; People v. Scott (2016)
3 Cal.App.5th 1265, 1281 [“section 3051 has abolished de facto
life sentences” “by virtue of its provision for mandatory parole
eligibility hearings after no more than 25 years in prison”].)
2. Palfi Had a Duty Not To Misadvise Smith
About Her Parole Eligibility
Palfi may not have had an affirmative duty to advise Smith
that section 3051 applied to her convictions, whether by plea or
by jury verdict. (See People v. Reed (1998) 62 Cal.App.4th 593,
597 [defense counsel’s failure to inform the defendant about the
limit on how much credit he could earn to reduce his time in
prison “was not ineffective assistance”]; id. at p. 598 [“‘parole
eligibility is a collateral rather than a direct consequence of a
17
guilty plea,’” and “‘a criminal defendant’s ‘actual knowledge of
consequences which are collateral to the guilty plea is not a
prerequisite to the entry of a knowing and intelligent plea’”]; see
also People v. Barella (1999) 20 Cal.4th 261, 272 [“a defendant is
not entitled to withdraw or set aside a guilty plea on the ground
that the trial court, in accepting the plea, failed to advise the
defendant of a limit on good-time or work-time credits
available”].) But Palfi did have a duty not to misadvise Smith
about her eligibility for parole if she rejected the prosecution’s
offer. (See People v. Huynh (1991) 229 Cal.App.3d 1067, 1080,
1083 [defense counsel’s incorrect statement in court that the
defendant would be eligible for parole in seven years instead of
11 years four months, combined with the defendant’s testimony
he would not have waived his right to a jury trial had he been
properly advised, established “‘a prima facie case for relief on
habeas corpus’”]; see also People v. Johnson (1995)
36 Cal.App.4th 1351, 1355, 1357 [defense counsel’s
miscalculation of the defendant’s maximum potential sentence by
11 years before the defendant pleaded no contest was
“a dereliction of her duty to ensure that defendant entered his
plea with ‘full awareness of the relevant circumstances and the
likely consequences of his action’”]; People v. McCary (1985)
166 Cal.App.3d 1, 9 [“defendant’s counsel did not meet the
threshold standards of competency in failing to determine the
enhancement was invalid and to inform defendant of this fact in
the course of plea negotiations”]; see also People v. Ogunmowo
(2018) 23 Cal.App.5th 67, 77 [“[a]ffirmatively misadvising a client
that he will not face immigration consequences as a result of a
guilty plea in a drug trafficking case—when the law states
18
otherwise—is objectively deficient performance under prevailing
professional norms”].)
Palfi told Smith that, if she accepted the plea offer, she
would have an opportunity for early parole under the “new law,”
but that if she went to trial and lost she would essentially
(“pretty much,” in Palfi’s words) not have that opportunity. This
(mis)advice was incorrect. In fact, Smith would have had the
same opportunity for a youth offender parole hearing in 25 years
under section 3051 whether she pleaded no contest to the charges
or was convicted by a jury on those charges. Palfi’s erroneous
advice “fell below an objective standard of reasonableness under
prevailing professional norms.” (In re Alvernaz, supra, 2 Cal.4th
at p. 937; see ibid. & fn. 6 [“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”].)10
10 The Supreme Court cautioned that “a defense attorney’s
simple misjudgment as to the strength of the prosecution’s case,
the chances of acquittal, or the sentence a defendant is likely to
receive upon conviction, among other matters involving the
exercise of counsel’s judgment, will not, without more, give rise to
a claim of ineffective assistance of counsel.” (In re Alvernaz,
supra, 2 Cal.4th at p. 937.) Palfi’s misstatement about Smith’s
ineligibility for parole if a jury convicted her was not a
misjudgment about Smith’s likely sentence; it was contrary to a
law passed two years before Smith agreed to plead no contest.
(See People v. McCary, supra, 166 Cal.App.3d at p. 12 [“‘“There is
nothing strategic or tactical about ignorance.”’”].)
19
3. Smith Has Shown Prejudice
“In determining whether a defendant, with effective
assistance, would have accepted [or, as here, rejected] the offer,
pertinent factors to be considered include: whether counsel
actually and accurately communicated the offer to the defendant;
the advice, if any, given by counsel; the disparity between the
terms of the proposed plea bargain and the probable
consequences of proceeding to trial, as viewed at the time of the
offer; and whether the defendant indicated he or she was
amenable to negotiating a plea bargain.” (In re Alvernaz, supra,2 Cal.4th at p. 938; accord, In re Resendiz (2001) 25 Cal.4th 230,
253; People v. Breslin (2012) 205 Cal.App.4th 1409, 1421.)
A defendant’s “self-serving statement . . . 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.”
(Alvernaz, at p. 938; see Resendiz, at p. 253; Breslin, at p. 1421.)
Smith presented sufficient evidence of prejudice. She
stated in her declaration she would have chosen “to go to trial”
and “profess” her innocence had she known she would be eligible
for a parole hearing after 25 years “no matter how long the
sentence” she received from the court. And objective evidence
corroborated Smith’s declaration: Although the referee found
Palfi correctly communicated the prosecutor’s offer to Smith, the
first prejudice factor under Alvernaz, the advice Palfi gave Smith,
the second Alvernaz factor, supported a finding of prejudice. As
discussed, Palfi’s misstatement that Smith would lose her chance
for a youth offender parole hearing if she lost at trial was
incorrect as a matter of law and created an illusory advantage to
accepting the plea offer.
20
Moreover, the disparity between “the terms of the proposed
plea bargain and the probable consequences of proceeding to
trial,” the third Alvernaz factor, was insignificant. Because
under either scenario Smith would have been entitled to a youth
offender parole hearing during the 25th year of her incarceration
(see In re Cook, supra, 7 Cal.5th at p. 449), the plea bargain
offered little tangible benefit.11 Had Palfi not misinformed Smith
that a prison sentence after conviction by a jury would be more
than 50 years, without the possibility of an earlier parole
hearing, it was reasonably probable Smith would not have
accepted the plea offer.12 (See In re Vargas (2000) 83 Cal.App.4th
1125, 1141 [defendant “presented credible evidence supporting
his statements that his motivation in accepting the plea
agreement was based upon” trial counsel’s “misrepresentations
and coercive statements”]; People v. Johnson, supra,36 Cal.App.4th at pp. 1355-1356, 1358 [trial counsel’s
miscalculation by 11 years of the defendant’s maximum potential
sentence had he gone to trial “was a substantial inducement in
his decision to plead nolo contendere”]; People v. McCary, supra,
166 Cal.App.3d at pp. 8, 9, 11 [defendant “was prejudiced” by
trial counsel’s failure “to ascertain” he “was not legally subject to
the charged enhancement” because the prosecutor’s promise to
11 Regardless of her aggregate prison sentence, if the Board
denies Smith parole at her first youth offender parole hearing,
the Board will “set the time for a subsequent youth offender
parole hearing in accordance with” section 3041.5,
subdivision (b)(3). (§ 3051, subd. (g).)
12 To the extent the fourth Alvernaz factor is relevant in a
case where the defendant accepts a plea agreement, Smith
demonstrated she was amenable to negotiating a plea bargain.
21
dismiss the enhancement “had no value whatsoever”]; cf. In re
Resendiz, supra, 25 Cal.4th at p. 254 [defendant failed to show
prejudice because the plea agreement offered him a benefit of six
months of incarceration and three years of probation, compared
to five years four months of incarceration “had the prosecution
chosen to seek maximum penalties”].)
The Secretary argues that “admitting culpability via a
guilty plea in a murder case may be an important factor in favor
of granting parole” and that “the operative question under the
second Strickland prong is whether it is reasonably probable that
[Smith] would have given up the possibility that a no contest plea
would make her a better parole candidate in exchange for the
possibility that she would be acquitted at trial.” That is not the
question. Palfi never told Smith pleading no contest would
improve her odds or prospects before the Board of Parole
Hearings.13 The question is what Smith would have done had
Palfi not misstated her parole eligibility under section 3051, not
what Smith would have done had Palfi not misadvised her about
section 3051 and told her about factors the Board might consider
in granting or denying parole. (See Hill v. Lockhart, supra,
474 U.S. at p. 59 [the “‘prejudice’” requirement “focuses on
whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process”]; In re Resendiz, supra,
25 Cal.4th at p. 253 [“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
13 In fact, when describing the parole process, all Palfi told
Smith was that a “parole date” would depend on “how well she
did in prison.”
22
not have pled guilty and would have insisted, instead, on
proceeding to trial”].)
Nor would advising Smith to accept responsibility for her
crimes and admit her guilt necessarily help her in a parole
hearing 25 years later. Although one of the circumstances
tending to show suitability for parole is “demonstration of
remorse” (In re Shaputis (2008) 44 Cal.4th 1241, 1257; see In re
Lawrence (2008) 44 Cal.4th 1181, 1203), acceptance of
responsibility “‘works in favor of release “[n]o matter how
longstanding or recent it is,” so long as the inmate “genuinely
accepts responsibility.”’” (In re Twinn (2010) 190 Cal.App.4th
447, 467; see In re Barker (2007) 151 Cal.App.4th 346, 368-369;
In re Elkins (2006) 144 Cal.App.4th 475, 495.) Thus, Smith did
not need to admit culpability for her crimes in 2018 to show her
suitability for parole in 2043. (See Lawrence, at p. 1226 [in light
of the remorse petitioner expressed years after the crime and
“other factors establishing suitability” for parole, the gravity of
the petitioner’s commitment offense provided “no support for the
Governor’s conclusion that petitioner is unsuitable for parole at
the present time”].)14
14 In re Tapia (2012) 207 Cal.App.4th 1104, on which the
Secretary relies, is distinguishable. In that case the defendant
refused to identify his coconspirator until the day of his parole
hearing, which the court found constituted “an ongoing threat to
public safety” over many years. (Id. at p. 1112.) As discussed,
Smith can attempt to show she is suitable for parole in 25 years
by (among other things) genuinely accepting responsibility; she
just doesn’t have to accept responsibility at the time and by way
of a plea. (See, e.g., In re Twinn, supra, 190 Cal.App.4th at
pp. 470-471 [petitioner was entitled to parole even though he did
23
The Secretary also argues that, given “McCollum’s
cooperation with police,” Smith’s “likelihood of being acquitted
was extremely low.” According to the Secretary, “Palfi would
have explained that [Smith’s] best chance to be released on parole
. . . was to plead guilty and demonstrate rehabilitation, and it is
likely [Smith] would have accepted that advice.” Again, nothing
in the record supports the Secretary’s argument that Palfi would
have explained to Smith the benefits of accepting responsibility
early or that Smith would have decided not to require the People
to prove their case beyond a reasonable doubt to a jury. (See Lee
v. United States (2017) ___ U.S. ___ [137 S.Ct. 1958, 1966-1967,
198 L.Ed.2d 476] [when “the respective consequences of a
conviction after trial and by plea” are, “from the defendant’s
perspective, similarly dire, even the smallest chance of success at
trial may look attractive”]; cf. People v. Rodriguez (2021) 68
Cal.App.5th 301, 311-312 [under section 1473.7 “prejudice is
established if the movant shows ‘there is a reasonable probability
[he or she] would not have pleaded guilty—and would have
risked going to trial (even if only to figuratively throw a “Hail
Mary”)—had [he or she] known the guilty plea would result in
mandatory and dire immigration consequences’”].) Because Palfi
provided ineffective assistance, Smith is entitled to withdraw her
plea. (See People v. McCary, supra, 166 Cal.App.3d at p. 7
[“[w]here a defendant has been denied the effective assistance of
counsel in entering a plea of guilty, he is entitled to reversal and
not acknowledge his involvement in, or accept responsibility for,
his role in the murder until almost 20 years after the crime].)
24
an opportunity to withdraw his plea if he so desires”]; see also
People v. Huynh, supra, 229 Cal.App.3d at p. 1084 [if the superior
court finds that the defendant “was incorrectly advised by
defense counsel about parole eligibility . . . and that a reasonable
defendant would not have submitted the case to court trial as he
did had he been properly advised [citation], then defendant will
be entitled to withdraw from the terms of the submission”].)
DISPOSITION
The petition is granted. The trial court is directed to allow
Smith to withdraw her plea of no contest and enter a different
plea.
SEGAL, J.
We concur:
PERLUSS, P. J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
25