People v. Gervais CA4/1 ( 2015 )

Filed 8/27/15 P. v. Gervais CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066318
Plaintiff and Respondent,
v. (Super. Ct. No. SCD254225)
NICHOLAS GERVAIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert F. O'Neill, Judge. Affirmed.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Susan E. Miller
and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
Nicholas Gervais pleaded guilty to gross vehicular manslaughter while
intoxicated, driving under the influence of alcohol causing bodily injury, driving with a
blood alcohol level of .08 percent or more causing injury, and driving under the
combined influence of alcohol and a drug and causing injury. He also admitted to
enhancements for infliction of great bodily injury on John Hajosy, infliction of great
bodily injury on Justin Vogt, infliction of bodily injury to more than one victim, and
having a blood alcohol concentration of .15 percent or more. The trial court sentenced
Gervais to 11 years and eight months in prison. He appeals, contending his public
defender provided ineffective assistance by failing to make efforts to have Gervais plead
guilty before the prosecutor amended the complaint against him to add sentencing
enhancement allegations for infliction of great bodily injury.
FACTUAL AND PROCEDURAL BACKGROUND
This case stems from an incident in which Gervais drove the wrong way on two
freeways and eventually collided head on with a vehicle driven by Hajosy. Hajosy died
at the scene. Gervais's passenger, Vogt, was seriously injured in the accident. Gervais
admitted that he drank alcohol and smoked marijuana before driving. He had a blood
alcohol concentration of .25 percent several hours after the collision.
On February 26, 2014, the People filed a complaint charging Gervais with gross
vehicular manslaughter while intoxicated, driving under the influence of alcohol causing
injury, driving with a blood alcohol level of .08 percent or more causing injury, and
driving under the combined influence of alcohol and drugs and causing injury. (All
further date references are to the year 2014.) That same day, Gervais was arraigned and
pleaded not guilty to the charges. The court appointed him a public defender.
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On March 3, Gervais withdrew his request for bail review. Two days later, the
deputy district attorney assigned to the case provided some discovery to the public
defender. On March 7, the court held a readiness conference. Gervais had not met with
his public defender, Brian Dooley, until that day. They only talked for approximately
five minutes. Dooley informed Gervais that his maximum exposure was 10 years, eight
months in prison and that the district attorney had not offered a plea bargain. According
to Gervais, he planned to plead guilty at the readiness conference, but Dooley told him to
" 'go along with the process.' " Additionally, Dooley did not inform Gervais that he could
plead guilty without a plea agreement.
On March 17, the deputy district attorney e-mailed Dooley and informed him that
she would be amending the charges against Gervais to add great bodily injury allegations.
Thereafter, the deputy district attorney provided Dooley with further discovery.
On March 22, Gervais retained Robert Boyce to represent him. Gervais informed
Boyce that he wanted to plead guilty to the charges alleged in the complaint. Two days
later, Boyce contacted the deputy district attorney who informed Boyce that she planned
to amend the complaint to allege sentencing enhancements. On March 28, Boyce
substituted in as attorney of record for Gervais and the district attorney amended the
complaint. As relevant here, the amended complaint added great bodily injury
allegations to the charges of driving under the influence of alcohol causing bodily injury,
driving with a blood alcohol level of .08 percent or more causing injury, and driving
under the combined influence of alcohol and a drug and causing injury.
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On the day the district attorney filed the amended complaint, Gervais pleaded not
guilty to it. Approximately a month later, Gervais moved to plead guilty to the charges in
the original complaint. He argued Dooley provided ineffective assistance by failing to
advise him that he had the option to plead guilty to the original complaint. He presented
evidence that he told Boyce and his mother that he had wanted to plead guilty before the
complaint was amended. In a declaration, Boyce stated that he spoke to Dooley who
informed him that he did not meet with Gervais before the initial readiness conference,
suspected the district attorney would amend the complaint to allege enhancements, and
did not think of advising Gervais " 'to plead to the sheet.' " Boyce prepared a declaration
for Dooley to sign stating that Dooley knew there was a possibility that the district
attorney could amend the complaint to add sentencing enhancements and did not discuss
pleading guilty to the initial complaint with Gervais in order to avoid increased
punishment. Dooley declined to sign the declaration.
The People opposed Gervais's motion and the trial court denied it. The court
found Dooley had not provided ineffective assistance and had not acted below the
standard of care. Rather, the court noted that Dooley would have provided ineffective
assistance had he advised Gervais to plead guilty without completely receiving and
evaluating the discovery. Lastly, the court concluded Gervais was not prejudiced because
there was no plea bargain offered and, even if Gervais had wanted to plead guilty to the
original complaint, the People would have objected to the plea. Thereafter, Gervais
pleaded guilty to the charges and allegations in the amended complaint.
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DISCUSSION
Gervais argues Dooley provided ineffective assistance by failing to make efforts to
have Gervais plead guilty at the March 7 readiness conference, which was before the
prosecutor amended the complaint. Gervais contends that, as a result of the amendment
adding great bodily injury allegations, his sentence was increased from 10 years and eight
months to 11 years and eight months and he was subject to a conduct credit limitation of
15 percent rather than 50 percent (Pen. Code, §§ 667.5, subd. (c)(8), 1170.1, subd. (a),
2933.1). Consequently, Gervais must actually serve approximately nine years and 10
months, rather than five years and four months in prison.
"An appellant claiming ineffective assistance of counsel has the burden to show:
(1) counsel's performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms; and (2) the deficient performance
resulted in prejudice." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147;
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland) [setting out two-pronged
test for assessing ineffective assistance of counsel claims as requiring showing of
deficient performance and resultant prejudice].)
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
[Citation.] A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
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counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at
the time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound trial
strategy.' [Citation.]" (Strickland, supra, 466 U.S. at p. 689.) Likewise, "[i]n
considering the effectiveness of counsel at the pleading stage, we should not judge
attorneys by the harsh light of hindsight, but we must determine whether the appointed
counsel at the time was 'reasonably likely to render, and [was] rendering, reasonably
effective assistance.' " (In re Williams (1969) 1 Cal.3d 168, 176.) A claim of ineffective
assistance of counsel fails if the "record does not demonstrate there could be no rational
tactical reason for [an] omission." (People v. Lucas (1995) 12 Cal.4th 415, 437, 442.)
Here, Gervais contends that a reasonably competent attorney would have either
reviewed the police reports or discussed the case with him and, based thereon,
ascertained that "realistically, there would not be much, if anything, the defense could do
to get a jury to find a reasonable doubt with respect to any of the charges in the original
information." Moreover, Gervais argues Dooley should have been aware that the charges
in the original complaint were less severe than the facts supported and thus Gervais could
secure a more favorable outcome by pleading to "the sheet" before the prosecutor added
charges or allegations. Gervais has not shown Dooley's performance was deficient such
that it fell below an objective standard of reasonableness under prevailing professional
norms.
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Applying the deferential standard that we must to Dooley's performance, there was
no ineffective assistance of counsel. At the time of the readiness conference, which was
nine days after the initial complaint was filed, it was not unreasonable for Dooley to
recommend that Gervais " 'go along with the process' " and plead not guilty. Dooley had
only received partial discovery from the deputy district attorney two days before the
readiness conference. The deputy district attorney had also informed Dooley that she was
waiting on further documentation from the California Highway Patrol and would provide
that on a later date.
Regardless, Gervais claims Dooley should have made efforts to investigate the
facts of the case and anticipated that the deputy district attorney would amend the
complaint to charge second degree murder or add sentencing enhancements. However,
there was also a possibility that the district attorney may not have amended the complaint
or could have offered a plea bargain even after amending the complaint. Indeed, we can
envision a scenario in which Gervais may have claimed ineffective assistance had Dooley
recommended pleading guilty at the readiness conference before Dooley had received the
documents the deputy district attorney was waiting on from the California Highway
Patrol and prior to evaluating whether a plea bargain was likely.
Although in hindsight, Dooley's strategy to recommend Gervais plead not guilty at
the readiness conference may have been unsuccessful, we do not evaluate Dooley's
performance under the distorted effects of hindsight; rather, we evaluate his conduct
based on his perspective and the circumstances at the time. (Strickland, supra, 466 U.S.
at p. 689.) Based on the status of the case and the information Dooley had before him,
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including that pertinent discovery was forthcoming, we conclude he did not render
ineffective assistance.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
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