In re Brown , 160 Cal. Rptr. 3d 822 ( 2013 )

Filed 8/14/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
B245677
In re JAMALL BROWN,
(Los Angeles County
Super. Ct. No. TA117056)
on Habeas Corpus.
Petition for writ of habeas corpus; relief granted. Arthur Lew, Judge.
Linda L. Gordon, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney
General; Lance E. Winters, Senior Assistant Attorney General; James William
Bilderback II, Supervising Deputy Attorney General; Kathy S. Pomerantz, Deputy
Attorney General, for Respondent.
__________________________
INTRODUCTION
Defendant Jamall Brown was charged with assault with a deadly weapon and
vandalism. The information contained a prior strike allegation asserting that Brown had
previously suffered a juvenile adjudication for robbery in violation of Penal Code, section
211. After the jury convicted Brown of vandalism, he discussed the strike allegation with
his attorney and agreed to admit the strike. As a result of the admission, the trial court
doubled Brown‟s prison term.
Following his conviction, Brown‟s appellate counsel obtained the record of the
juvenile proceedings and discovered that the defendant‟s sustained adjudication did not
qualify as a strike. Brown filed a petition for a writ of habeas corpus arguing that his trial
counsel rendered ineffective assistance by failing to investigate the validity of the prior
strike allegation. We previously issued an order to show cause and now grant the
petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Trial Court Proceedings
On June 7, 2011, the District Attorney for the County of Los Angeles filed an
information charging Jamall Brown with one count of assault with a deadly weapon
(Penal Code, § 245, subd. (a)(1)1) and one count of vandalism resulting in damage over
$400 (§ 594, subd. (a).) The information further alleged that, in March of 2006, Brown
had sustained a juvenile adjudication for robbery (§ 211), which qualified as a “serious”
or “violent” felony under California‟s Three Strike law (see §§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d).) 2 Brown pleaded not guilty to the charges and denied the prior
strike allegation.
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 The information also charged Brown with one count of assault by means likely to
cause great bodily harm, which the prosecutor dismissed before trial, and further alleged
2
On November 9, 2011, the jury acquitted Brown of assault with a deadly weapon
and found him guilty of vandalism. After discussing the prior strike allegation with his
client, defense counsel informed the court that Brown intended to admit the strike. The
prosecutor proceeded to take the admission, stating: “You have one prior conviction for a
robbery. It‟s a sustained adjudication, for robbery in the meaning of 1170.12 (a) through
(d) and 667(b) through (i), in case number JJ13722 for robbery on or about March 24th,
2006 . . . , do you admit?” Brown admitted the allegation and his counsel joined the
admission.3
Prior to sentencing, Brown filed a “Romero motion” to dismiss the prior juvenile
adjudication strike. (See People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.)
The court denied the motion and sentenced Brown to two years in prison for vandalism,
which it doubled to four years based on the strike admission. Brown filed a timely
appeal.
B. Post-Conviction Investigation and Petition for Habeas Corpus
Following the entry of judgment, Brown‟s appellate counsel, Linda Gordon, began
researching the juvenile adjudication underlying the strike allegation. Gordon contacted
Brown‟s trial counsel and asked him whether the prosecution had provided any
documents to prove the strike. Trial counsel stated that the district attorney had shown
him a document, but he could not recall its contents. Gordon reviewed the superior court
record and was unable to locate any document pertaining to the juvenile adjudication.
Two weeks later, Gordon obtained the case file of the juvenile proceeding, which
contained a copy of the original petition and two minute orders. The original petition,
dated February 6, 2006, alleged a single count against Brown for robbery (§ 211).
However, a minute order dated March 13, 2006 amended the petition to add a count for
that he had suffered two other prior convictions that rendered him ineligible for
probation. (§ 1203, subd. (e)(4).)
3 Defense counsel initially requested “a hearing regarding the juvenile strike and
whether it applies,” but subsequently withdrew the request and joined in the admission.
3
grand theft (§ 487, subd. (c) [theft from a person].) A second minute order, dated
March 24, 2006, was the disposition showing that the juvenile court had sustained the
grand theft charge pursuant to Brown‟s admission and dismissed the remaining count for
robbery.
Gordon attempted to obtain a transcript of the March 13 and March 26 hearings to
confirm that the sustained adjudication had been for grand theft only. After receiving an
affidavit stating there were no notes available to transcribe for either of the hearing dates,
Gordon filed an application in this court requesting permission to seek a settled statement
regarding the juvenile court adjudication. We granted the request and directed the
superior court to hold a hearing for the purpose of settling the juvenile record. During
that hearing, the district attorney conceded that the March 26, 2006 minute order showed
Brown had admitted to grand theft in violation of section 487, subdivision (c), and that
the robbery charge was dismissed. The trial court ordered the clerk to prepare a
supplemental clerk‟s transcript for this case containing copies of the two juvenile court
minute orders and a transcript of the settlement hearing.
Gordon thereafter sent Brown‟s trial counsel correspondence requesting that he:
(1) summarize his investigation of the prior strike allegation; and (2) explain why he had
advised his client to admit the prior strike allegation. Based on trial counsel‟s responses
to her inquiry, Gordon drafted a declaration and asked counsel to review and sign the
document. After further discussions with trial counsel, Gordon revised the declaration
and again requested that he review and sign it. Trial counsel, however, declined to sign
either of the draft declarations and provided a letter stating the following: “Rather than
making changes to the proposed statements you mailed to me, I think it makes better
sense to write my own, so that you have an accurate understanding of my position with
regard to the handling of the alleged prior in Jamall Brown‟s case. I reviewed the portion
of the hearing transcript for the date [on which Brown admitted the prior strike] . . . and
believe it accurately reflects the fact that I spent quite some time discussing the issue of
the alleged juvenile prior with Jamall Brown, along with his rights pertaining to the
alleged prior, after he was acquitted by the jury of Assault with a Deadly Weapon and
4
found guilty of Vandalism. It was after that lengthy discussion, which took place
between Jamall Brown and I in court, that Jamall Brown decided to admit the juvenile
prior alleged. I do not recall the contents of the juvenile packet the prosecutor had, as the
trial was quite some time ago, and I have tried many cases since, and I was not provided
with a copy of it.”
On December 13, 2012, Brown filed a petition for habeas corpus arguing that his
trial counsel provided ineffective assistance by failing to conduct an adequate
investigation of the prior strike allegation and advising him to admit a strike he did not
suffer. The petition requested, among other things, that this Court strike the sentence
enhancement predicated on the erroneous strike admission.
In support of the petition, Brown provided a declaration stating that, in March of
2006, he was charged with robbery and had agreed to admit an allegation in the juvenile
court upon the advice of his public defender. Brown‟s declaration further stated that, at
the time he admitted the prior strike allegation in this matter, he was unaware of the true
nature of his juvenile adjudication. He agreed, however, to follow trial counsel‟s
recommendation to admit that the sustained juvenile petition was for robbery. According
to Brown, he would not have made the admission if he had known his juvenile
adjudication did not qualify as a prior strike conviction.
The habeas petition was also accompanied by a declaration from Linda Gordon
summarizing her investigation of the prior juvenile adjudication. The declaration was
accompanied by several exhibits, which included her correspondence with Brown‟s trial
counsel and the draft declarations trial counsel had elected not to sign. On March 15,
2013, we issued an order to show cause.4
4 Brown filed the opening brief in his direct appeal (Case No. B238376) on the
same day he filed his habeas petition. The appeal raises the same claim for ineffective
assistance of counsel set forth in the petition. Because our Supreme Court has directed
that such a claim should generally be made in a petition for writ habeas corpus, rather
than on direct appeal (see People v. Cunningham (2001) 25 Cal. 4th 926, 1031), we
address Brown‟s habeas petition and dismiss his direct appeal as moot by a separate
order.
5
DISCUSSION
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal. 3d 171, 215 (Ledesma).) To
establish constitutionally inadequate representation, a defendant must demonstrate two
components: “First, he must show that counsel‟s performance was deficient; specifically,
he must establish that counsel‟s representation fell below an objective standard of
reasonableness under prevailing professional norms. Second, he must establish
prejudice. He must show that there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result would have been different. . . . Defendant has the burden
of proving an ineffective assistance claim by a preponderance of the evidence.
[Citation.]” (People v. Plager (1987) 196 Cal. App. 3d 1537, 1542-1543 (Plager).)
Generally, a reviewing court will reverse a conviction “on the ground of inadequate
counsel only if the record . . . affirmatively discloses that counsel had no rational tactical
purpose for his act or omission.‟ [Citation.]” (Ibid.)
Brown argues that his trial counsel provided ineffective assistance by failing to
adequately investigate the validity of the strike allegation and allowing him to admit a
strike he did not suffer. The Attorney General concedes that Brown‟s juvenile
adjudication was for grand theft (§ 487, subd. (c)), not robbery, and therefore did not
constitute a “serious” or “violent” felony conviction within the meaning of the Three
Strikes law.5 She also does not dispute that Brown, whose sentence was doubled as a
5 Section 667, subdivision (d)(3) describes the circumstances under which a prior
juvenile adjudication constitutes a strike. The subdivision requires the prosecution to
prove, among other things, that: (1) the juvenile adjudication was for an offense listed in
either Welfare and Institutions Code section 707, subdivision (b), Penal Code section
667.5, subdivision (c) or Penal Code section 1192.7; and (2) during the same juvenile
proceeding, the juvenile was found to have committed at least one offense listed in
Welfare and Institutions Code section 707, subdivision (b). Thus, where, as here, the
juvenile adjudication involved a single offense, the offense must appear in Welfare and
Institutions Code section 707, subdivision (b) to qualify as a prior strike. Robbery is
6
result of the erroneous admission, was prejudiced by his trial counsel‟s conduct. (See
Plager, supra, 196 Cal.App.3d at pp. 1543-1544 [defendant suffered clear prejudice by
counsel‟s failure to inform him district attorney could not prove prior strike allegation].)
The Attorney General contends, however, that we should nonetheless deny Brown‟s
petition for habeas relief because his counsel‟s investigation into the nature of the
juvenile adjudication was objectively reasonable under prevailing professional norms.
A. Defense Counsel’s Duty to Investigate Prior Conviction Allegations
“Criminal defense counsel has the duty to investigate carefully all defenses of fact
and of law that may be available to the defendant.” (In re Hill (2011) 198 Cal. App. 4th
1008, 1016; see also Ledesma, supra, 43 Cal.3d at p. 222 [“[c]ounsel‟s first duty is to
investigate the facts of his client‟s case and to research the law applicable to those
facts”].) “Before entering his plea, [a defendant is] „entitled to rely upon his counsel to
make an independent examination of the facts, circumstances, pleadings and laws
involved and then to offer his informed opinion as to what plea should be entered.‟
[Citation.] The attorney‟s role in investigating the facts and researching the applicable
law prior to advising the petitioner to plead becomes particularly important because of
the serious consequences of a guilty plea[,which] . . . is itself a conviction.” (In re
Williams (1969) 1 Cal. 3d 168, 175.) “If counsel‟s „failure [] to undertake such careful
inquiries and investigations [] results in withdrawing a crucial defense from the case, the
defendant has not had the assistance to which he is entitled.‟ [Citation.]” (In re Saunders
(1970) 2 Cal. 3d 1033, 1042; People v. Pope (1979) 23 Cal. 3d 412, 422.) The adequacy
of a counsel‟s investigation is “assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel‟s judgments.” (Strickland v.
Washington (1984) 466 U.S. 668, 691; In re Thomas (2006) 37 Cal. 4th 1249, 1257-
1258.)
listed in section 707, subdivision (b), but grand theft is not. Although the Attorney
General asserts that there are circumstances under which a conviction for grand theft
might qualify as a prior strike, it expressly concedes that no such circumstances are
present here and that Brown‟s prior adjudication therefore does not qualify as a strike.
7
Defense counsel‟s duty to investigate extends to prior conviction allegations that,
if proven, may increase the defendant‟s sentence. Thus, “[w]henever a sentence is
enhanced . . . due to a prior conviction, it is counsel‟s obligation to examine the validity
of the prior or underlying conviction.” (See People v. Cotton (1991) 230 Cal. App. 3d
1072, 1084.) In Plager, supra, 196 Cal. App. 3d 1537, the court applied these principles
in holding that defense counsel provided ineffective assistance by failing to advise his
client that the prosecution would be unable to establish two prior strike allegations for
“residential burglary.” The defendant had agreed to admit both strike allegations after
“consulting with his attorney” (id. at p. 1542), which resulted in a 10-year sentence
enhancement. The records of the prior convictions, however, demonstrated that both
offenses were actually for “second degree burglary,” which did not qualify as a strike. At
the time the attorney advised the defendant to admit the strike allegations, the law was
clear that a conviction for second degree burglary was insufficient to prove residential
burglary (which would qualify as a strike) “even if the pleadings included superfluous
allegations to that effect.” (Ibid.)
After summarizing defense counsel‟s duty to investigate, the court found that the
attorney‟s conduct constituted ineffective assistance: “Inasmuch as [defendant‟s]
admissions were not part of a sentence understanding, or part of a plea bargain, . . .
[t]here could have been no valid reason, tactical or otherwise, for trial counsel to have
advised defendant to admit the prior felony allegations which would and did subject him
to 10 additional years of imprisonment. If, knowing the law, he advised or even
permitted defendant to admit the truth of the allegations, there can be no satisfactory
explanation for his conduct; if he was unaware of the applicable law . . . he breached his
duty to investigate all defenses of fact and law available to his client.” (Plager, supra,
196 Cal.App.3d at p. 1543.) The court further concluded that the defendant had
established prejudice, explaining “it cannot be reasonably argued that had defendant been
aware the People could not prove the allegations, he would have voluntarily accepted the
10-year enhancement.” (Ibid.)
8
Federal courts applying the Sixth Amendment right to counsel have found
ineffective assistance under analogous circumstances. In Lewis v. Lane (7th Cir. 1987)
832 F.2d 1446, the defendant filed a petition for habeas corpus arguing that his trial
counsel had provided ineffective assistance during the sentencing phase of a capital
proceeding. The applicable state law required the jury to consider whether any mitigating
factors precluded the imposition of the death penalty, which included the absence of any
“significant history of prior criminal activity.” (Id. at p. 1454, fn 3.) Prior to the hearing
on mitigating circumstances, the prosecutor asked defense counsel if he would “stipulate
to the existence of four prior felony convictions on the basis of information contained in
an „FBI rap sheet.‟” (Id. at p. 1455.) The rap sheet listed convictions for attempted
felonious assault with a knife, felonious assault with a tire iron, second degree bank
robbery and bank robbery. Defense counsel “showed the „rap sheet‟ [to the defendant]
and asked him if it were accurate.” (Ibid.) The defendant told his counsel “he thought
the information was correct. . . . On the basis of [this] response, [counsel] agreed to
stipulate to the existence of the . . . convictions despite the fact that the State did not have
certified records of the [prior] convictions and could not have proved their existence had
they been requested or required to do so.” (Ibid.) Based on the parties‟ stipulation, the
trial court permitted the prosecutor to inform the jury of the four prior convictions, which
the prosecutor emphasized during closing arguments. Defendant was sentenced to death.
The appellate court held that defense counsel had provided ineffective assistance,
characterizing his representation as “„shockingly inferior.‟” (Lewis, supra, 832 F.2d at
p. 1458.) The court explained that rather than insisting on “actual proof of those
convictions in the form of certified copies,” defense counsel had improperly “relied on
[defendant‟s] uninformed representation that he thought the information contained in the
„FBI rap sheet‟ was accurate, without explaining to [defendant] the importance of that
information and the critical distinctions between arrest and conviction and between
felony and misdemeanor.” (Ibid.) The court further concluded that the defendant “was
actually prejudiced by the [counsel‟s] regrettable representation with respect to the
erroneous . . . convictions,” adding that “„counsel‟s conduct [had] so undermined the
9
proper functioning of the adversarial process that the [capital sentencing proceeding]
[could not] be relied on as having produced a just result.” (Ibid. [citing Strickland, supra,
466 U.S. at p. 696 [in applying two-part test applicable to claims for ineffective
assistance, court‟s “ultimate focus of inquiry must be . . . whether, despite the strong
presumption of reliability, the result of the particular proceeding is unreliable because of
a breakdown in the adversarial process that our system counts on to produce”].)
Similarly, in Banyard v. Duncan (C.D. Cal. 2004) 342 F. Supp. 2d 865 (Banyard),
an information contained a prior strike allegation asserting that the defendant had
previously pleaded guilty to assault with a firearm in violation of Penal Code section 245,
subdivision (a)(2). On the advice of his counsel, the defendant admitted the strike and his
sentence was enhanced accordingly. The defendant‟s prior record of conviction,
however, demonstrated he had previously pleaded guilty to section 245, subdivision
(a)(1): assault with a deadly weapon or assault with intent to cause great bodily injury.
Under the controlling case law, to establish that such an offense qualified as a strike, the
district attorney would have had to show the defendant actually inflicted great bodily
injury or used a firearm or other dangerous weapon. Defendant‟s record of conviction
contained no evidence demonstrating either of those factors, which would have precluded
the prosecution from establishing the strike allegation absent defendant‟s erroneous
admission.
The district court concluded that, under such circumstances, defense counsel had
provided ineffective assistance by “fail[ing] to investigate whether [defendant‟s] prior
felonies constituted strikes and to advise [defendant], without having conducted such an
investigation, to admit to those prior strikes.” (Banyard, supra, 342 F.Supp.2d at p. 886.)
B. Trial Counsel Failed to Conduct a Proper Investigation of Brown’s
Prior Conviction
In this case, trial counsel provided a letter explaining that he permitted Brown to
admit the prior strike allegation based on: (1) a packet of materials the prosecution had
provided to him at trial, and (2) information that Brown provided to him during their
10
discussion of the juvenile adjudication. Under the circumstances of this case, counsel‟s
reliance on these two forms of evidence did not constitute an adequate or reasonable
investigation into the validity of the prior strike allegation.
First, neither trial counsel nor the Attorney General has identified what documents
the prosecutor intended to rely on in proving the strike allegation. In fact, no party has
produced or alleged the existence of any document that would have established (or been
admissible to establish) Brown‟s prior juvenile adjudication was for robbery, rather than
grand theft. Generally, the truth of a prior conviction allegation may be established only
by documents within the record of the prior conviction that reliably reflect the facts of the
prior offense. (People v. Trujillo (2006) 40 Cal. 4th 165, 177-180 (Trujillo); People v.
Roberts (2011) 195 Cal. App. 4th 1106, 1126.) The only relevant documents within
Brown‟s prior juvenile adjudication consist of: (1) the original petition, which charged
Brown with a single count of robbery;6 (2) a minute order amending the original juvenile
petition to add a single count of grand theft in violation of section 487, subdivision (c);
and (3) a minute order sustaining the grand theft count and dismissing the robbery count.
As the district attorney acknowledged at the settled statement hearing in the trial court,
not only do these documents fail to prove that the juvenile petition was sustained against
Brown for robbery or any other offense that would qualify as a strike, they conclusively
demonstrate that the prior adjudication did not qualify as a prior strike offense.
The Attorney General, however, contends that Brown‟s defense counsel might
have reasonably relied on two other documents in concluding that the prior adjudication
was for robbery: the information filed against Brown in this case and his pre-conviction
probation report, each of which contain an erroneous allegation that Brown‟s juvenile
adjudication was for robbery. We fail to see how defense counsel could have reasonably
6 The record in this case does not contain a copy of this original petition and
Brown‟s trial counsel has never asserted that he saw the original petition. The petition,
however, is referenced in a declaration from Linda Gordon and an unsigned declaration
she prepared for trial counsel. Moreover, both parties reference the original petition in
their briefs. Therefore, for the purposes of this habeas petition, we will assume that the
original petition was within the record of the prior conviction.
11
relied on either of these documents in concluding that the strike allegation was valid. The
information merely contains allegations regarding the nature of Brown‟s juvenile
adjudication. Defense counsel has a duty to investigate allegations made against his
client, not merely assume their truth. The probation report, on the other hand, contains
multiple layers of hearsay and was not a part of the “record of conviction” in the juvenile
proceeding. As a result, it could not have been admitted to prove the prior conviction.
(See Trujillo, supra, 40 Cal.4th at p. 176 [“in determining the truth of a prior conviction
allegation, the trier of fact may „look . . . to the entire record of the conviction‟ [citation]
„but no further‟ [citation]”].) In sum, neither the record in this case nor the record of the
prior conviction contain any document that trial counsel could have reasonably relied
upon in concluding that his client‟s juvenile adjudication qualified as a strike.
The only remaining information available to trial counsel regarding the nature of
the prior conviction was Brown‟s “acknowledgment that he had a juvenile sustained
petition for robbery.”7 The Attorney General contends that defense counsel was entitled
to rely on this information in advising his client to admit the prior strike allegation. In
support, she cites the general proposition that “„[t]he reasonableness of counsel‟s actions
may be determined or substantially influenced by . . . . information supplied by the
defendant. . . . [W]hat investigation decisions are reasonable depends critically on such
information.‟ [Citation.] Thus, a defendant can hinder counsel‟s investigation not only
through affirmative statements, but also by remaining silent or failing to disclose
pertinent information to counsel.” (In re Crew (2011) 52 Cal. 4th 126, 148 (Crew).)
Courts have generally utilized these principles to deny ineffective assistance claims
predicated on inadequate investigation in cases where defendants have affirmatively
misrepresented or failed to disclose facts that they would reasonably be expected to
know. (See People v. Burnett (2003) 110 Cal. App. 4th 868, 884 [“It is not defense
7 Although the parties have presented no evidence establishing that Brown actually
told his trial counsel that the juvenile adjudication was for robbery, rather than grand
theft, both parties appear to assume the truth of this assertion. We will therefore do the
same.
12
counsel‟s fault that defendant lied to him” regarding the manner in which the victim was
injured]; Crew, supra, 52 Cal.4th at pp. 148-149 [failure to investigate childhood sexual
abuse did not constitute ineffective assistance where defendant repeatedly informed
counsel that his childhood had been normal and that he had not experienced any
problems].)
Our Supreme Court has clarified that “[w]hether a defendant‟s statements actually
hindered trial counsel‟s investigation depends upon the circumstances of each case.
[Citation.]” (Crew, supra, 52 Cal.4th at p. 148.) Under the circumstances here, we
conclude defense counsel could not reasonably rely solely on Brown‟s characterization of
his juvenile adjudication in investigating the prior strike allegation. There are several
reasons for our conclusion.
First, given the complexities of the Penal Code and the Three Strikes law, it was
not reasonable for trial counsel to assume that his non-lawyer client had the specialized
knowledge to understand the specific crime or section of the Penal Code in his prior
adjudication as a juvenile.8 Nor was it reasonable for trial counsel to assume his client
could accurately recall exactly what offense or section of the Penal Code was sustained
against him in a proceeding that occurred five years prior, when the defendant was only
16-years old.
Second, even if trial counsel had a reasonable basis for believing Brown could
accurately recall the specific offense underlying his prior adjudication, counsel had a duty
to ensure that the prosecution possessed evidence that would be sufficient to prove the
prior strike allegation. In this case, defense counsel could have fulfilled this duty by
simply asking the prosecution to provide documentation establishing the truth of the prior
8 Brown allegedly informed his counsel that his prior adjudication was for
“robbery,” when in fact he was convicted of grand theft. Robbery is “„“a species of
aggravated [theft]”‟” that “„“includes the additional element of force or fear.” [Citation.]‟
[Citation.]” (People v. Ortega (1998) 19 Cal. 4th 686, 694 [overruled on another point in
People v. Reed (2006) 38 Cal. 4th 1224].) It is not reasonable to assume that a non-
lawyer, even an adult, would appreciate the nuanced differences between these offenses
or know that they are treated differently under the Three Strikes law.
13
strike allegation. As explained above, no party has identified or alleged that any such
evidence existed. Had trial counsel requested a copy of Brown‟s record of conviction–as
Brown‟s appellate counsel did–he would have determined that his client did not suffer a
prior strike conviction.
Finally, as in Plager, it is apparent from the record that Brown‟s erroneous
admission was not part of a plea bargain or other sentencing agreement that might have
benefitted Brown; instead the admission served only to double his prison term. Thus,
there could have been no possible valid reason, tactical or otherwise, for trial counsel to
permit his client to admit a strike he did not suffer. If trial counsel was actually shown
the record from the juvenile proceeding–which demonstrates that Brown‟s prior
adjudication was for grand theft–there can be no satisfactory explanation as to why
counsel would have advised or permitted Brown to admit that he was previously
convicted of robbery. If, as the record suggests, counsel relied solely on uncorroborated
statements in documents that would have been inadmissible to prove the prior conviction
and Brown‟s own description of the offense, he breached his duty to investigate all
defenses of fact and law available to his client.
The Attorney General has not identified any authority suggesting that, in the
absence of documentary proof establishing a prior strike allegation, defense counsel may
properly advise his client to admit the strike based solely on the client‟s own recollections
as to what occurred at the prior proceeding. We reject that argument. Indeed, we agree
with the Seventh Circuit‟s holding in Lewis, which involved essentially identical facts,
that such conduct “„so undermined the proper functioning of the adversarial process that
the [proceeding] cannot be relied on as having produced a just result.‟” (Lewis, supra,
832 F.2d at p. 1458.) We therefore strike defendant‟s erroneous admission of the prior
strike allegation and remand the matter to the trial court for a new sentencing hearing.
14
DISPOSITION
The petition for writ of habeas corpus is granted. The trial court is directed to
strike petitioner‟s admission of the prior strike allegation, and to proceed to resentence
petitioner. The clerk of this court is to forward a copy of this opinion to the State Bar of
California. (Bus. & Prof. Code, § 6086.7, subd. (a)(3).)
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
15