In re Westfield CA2/8

Filed 10/1/20 In re Westfield CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re B304263
ADAM WESTFIELD (Los Angeles County
Super. Ct. No. TA143786)
on
Habeas Corpus.
Petition for writ of habeas corpus. H. Clay Jacke II, Judge
Relief granted.
Paul Stubb Jr., under appointment by the Court of Appeal,
for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo, Acting Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Respondent.
_________________________
Adam Westfield is currently serving a 20-year term of
imprisonment. In 2018, he pleaded no contest pursuant to a plea
agreement, which required him to admit that a prior conviction
for vehicular manslaughter was a serious felony and a strike
within the meaning of the three strikes law. (Pen. Code, §§ 667,
subd. (a)(1); 667, subds. (b) through (i); & 1170.12.)1 In this
petition for writ of habeas corpus, he alleges he is unlawfully
incarcerated because his trial counsel failed to fully investigate
whether his prior conviction qualified as a prior strike, as alleged
in the Information. He argues that had his counsel fully
investigated the prior conviction and applicable law, counsel
would have known the strike did not qualify as a strike.
Petitioner’s maximum sentence exposure with a valid prior
strike conviction was 36 years; without such a conviction it was
24 years four months. Petitioner avers he would not have
accepted the plea agreement for 20 years had he been correctly
advised that the conviction was not a valid strike prior and could
not be used to increase his sentence.
We issued an order to show cause, to which the People filed
a return and petitioner filed a traverse. We find petitioner has
established counsel was ineffective. We grant petitioner’s
alternate request for an evidentiary hearing to resolve the
disputed issue whether petitioner indeed entered into the plea
agreement in reliance on counsel’s deficient advice. We remand
this matter to the trial court for that hearing.
1 Further undesignated statutory references are to the Penal
Code.
2
BACKGROUND
Seven charges were filed against petitioner involving two
different victims. Attempted murder, mayhem, false
imprisonment, and inflicting corporal injury on a current or
former dating partner or former spouse within seven years of a
prior conviction for felony assault with an allegation of great
bodily injury involved victim Turner. According to the
preliminary hearing transcript, on May 20, 2017, Turner and
petitioner were in a hotel room when petitioner became angry
and hit her in the left eye with a closed fist. He hit her in the
face and head, choked her, and stomped her many times. Turner
was able to leave the room and go home. She thought she was
going to die and called an ambulance, but ultimately her mother
took her to the hospital where she was admitted. The hospital
released her the next day. About a week later, her left side went
numb and she began to vomit and limp. Eventually, a friend took
her back to the hospital where she had seizures, went into a
coma, and was placed in the ICU. At the time of the June 2018
preliminary hearing, Turner was unable to speak and needed a
walker.
Trial began November 5, 2018. By that time Turner was
using a wheelchair and still could not speak. She was expected to
testify at trial by typing her answers to questions, which would
be read aloud to the jury; alternatively, where appropriate, it was
arranged she would hold up a flashcard with a short common
answer such as Yes or No. When petitioner entered into his plea
agreement on the second day of trial, Turner had appeared at the
courthouse, but had not yet testified.
3
The remaining three charges, inflicting corporal injury on a
current or former dating partner or spouse and two counts of
dissuading a witness from attending a judicial proceeding or
giving testimony, involved victim Nicholson. Petitioner entered
into the plea agreement after Nicholson had appeared and
testified at trial. She testified that on April 11, 2017, she and
petitioner got into an argument at her home. He choked her and
hit her in the mouth. Her neighbor called 911 and responding
police officers photographed her injuries.
In addition to the substantive charges involving the two
women, the amended information alleged petitioner had suffered
a prior strike conviction and served five prior prison terms within
the meaning of section 667.5, subdivision (b).
The plea offer which petitioner accepted on November 6,
2018 was not new. On November 5, 2018, after learning both
victims were present to testify against him at trial, petitioner had
indicated a desire to accept the prosecutor’s offer. There was
some confusion about whether the prosecution’s offer was open
until Turner testified, or only until she came to court. The
prosecutor expressed some reluctance to check with her office
about the offer’s viability because the “last time I went down
there and got what he wanted, I came back up and, you know,
was told no.” The court then offered to inquire of petitioner in
open court whether he wanted to accept the plea offer.
When the court asked petitioner if it was correct that he
wished to accept the offer, petitioner replied, “Uh, it’s true to an
extent.” He added, “I need you to break it down for me.” The
prosecutor explained the offer of 20 years required petitioner to
plead to inflicting corporal injury on Turner, admit the great
bodily injury allegation, and admit that his prior vehicular
4
manslaughter conviction was a serious felony within the meaning
of section 667, subdivision (a) and also a strike conviction within
the meaning of sections 667, subdivisions (b) through (i) and
1170.12. The remaining charges and allegations would be
dismissed. Petitioner declined the offer.
Trial resumed. Nicholson testified with difficulty. She
asked for several breaks. During one break, the court revisited
the plea offer. The court expressed its opinion that Nicholson
had “come off [as] very sympathetic.” The court then made
petitioner an alternate plea offer for 20 years requiring him to
“plead to everything” but the court “would strike the strike.” The
court asked petitioner if he was interested. Petitioner replied:
“Plead to attempted murder?” The court said, “You have to do
that.” Petitioner said, “No.” The court then clarified “the
People’s original offer didn’t involve the attempted murder. [¶]
See, my offer has to include it. . . . [S]ee the difference?”
Petitioner responded: “But the only problem I got with
that, right, she trying to give me a strike for something that’s not
a strike. [¶] Vehicular manslaughter was a—my situation was a
car accident. I took a deal for a county lid, no strike. I done [sic]
came back to jail numerous times after that and had half time.
[¶] That’s an unlawful deal.” The court responded, “Let me look
at that, because if that’s true, then that’s something different.”
The court expressed an interest in seeing the plea transcript and
asked the clerk to get the file right away.2
2 The plea to vehicular manslaughter had occurred in
Compton, the same courthouse where petitioner was currently on
trial.
5
While waiting for the file, the court asked petitioner: “Now,
let’s assume that issue is resolved in your favor. If I look at it
and I say you’re correct, then where do you stand?” Petitioner
replied: “Uh, uh, uh, I’ll take a disposition.” The prosecutor
volunteered that petitioner had admitted in another prior assault
case that the vehicular manslaughter conviction was a strike.
The court then appeared to look at the plea transcript for that
case, stating “This is not the sentencing. All this says is he pled
to 192[, subd.] (c)(1) [vehicular manslaughter].”
Trial resumed, with Nicholson still testifying. During a
break, petitioner made a Marsden3 motion, which the court
denied. The transcript of the hearing is sealed, and neither party
has asked us to unseal the motion for purposes of evaluating
petitioner’s ineffective assistance of counsel claim.
Trial resumed. At the end of the day on November 5, 2018,
court and counsel discussed the procedures by which victim
Turner would testify the following afternoon. The prosecutor
explained Turner would have to type her responses, but she used
a slow “hunt and peck” method. She and defense counsel had
agreed they would use a series of flash cards with common
responses such as “Yes” or “I don’t remember” for Ms. Turner to
point to or hold up. The court ended by stating to counsel: “And I
still want something regarding the strike about when that
statute, [section] 1192.8, was enacted and if this took place before
that. I want to know would that still apply or what applies.” The
court added: “I want to be able to answer that for him.”
3 People v. Marsden (1970) 2 Cal. 3d 118.
6
Trial resumed the next day, November 6, 2018, with no
discussion of the strike allegation. As Nicholson took the stand,
defense counsel told the court petitioner had “indicated to me
that he would accept the offer of the People for the 20 years as we
have discussed.” The court again directed the prosecutor to
explain the structure of the offer. She explained petitioner would
plead to inflicting corporal injury on victim Turner and receive a
five-year term, doubled to 10 years, because petitioner would
admit his prior strike. Petitioner would also admit the great
bodily allegation for an additional five years. In addition, he
would admit his five prior prison terms under section 667,
subdivision (b) for another five years, for a total of 20 years. The
prosecutor stated petitioner’s maximum possible sentence could
otherwise be 36 years.
Petitioner agreed to the terms. The prosecutor then
advised petitioner of his rights, obtained his waiver of those
rights, and took petitioner’s plea. When she asked petitioner if
he admitted or denied that he had suffered the strike conviction,
petitioner replied, “Yep, yep.” Then, after conferring briefly with
counsel, petitioner stated “I don’t understand what she wants me
to admit to.” The court explained that the prosecutor was
referring to the prior conviction as a strike. Petitioner asked,
“Oh, I’m going to admit to what? That I have a strike?” The
court replied, “You are admitting that you suffered that
conviction under that Penal Code section.” Petitioner replied, “I
admit I suffered that conviction. That’s what I admit.” The court
explained that petitioner would have to “admit that conviction
within the meaning of Penal Code section 667[, subd.](d) and
Penal Code section 1170.12[, subd.] (b).” Petitioner replied, “I
just admit the conviction, man. That’s all I can do. I can’t admit
7
nothing else, though.” The court explained: “No, no, but within
the meaning of those sections.” Petitioner replied, “ I don’t make
laws. I don’t understand that. I ain’t admitting to that.” The
court told petitioner to talk to his lawyer.
After speaking with counsel, petitioner stated, “I admit to
the conviction, man. That’s all I can say.” The court then
explained that for “this plea agreement to go through, we have to
make sure that, not only that you’re admitting to these
convictions, but you’re admitting to this prior conviction—in
other words, you know what it is. Okay? But you’re also
admitting that it counts under certain sections of the Penal
Code.” Petitioner replied, “All right. I admit that.”
At petitioner’s request, sentencing was deferred until after
Christmas. Petitioner soon filed a motion and an amended
motion to withdraw his plea. In his amended motion, petitioner
stated he was not guilty of the charges and had good and
substantial defenses to them and had entered his no contest plea
from confusion, mistaken, ignorance, inadvertence or other
factors. In his supporting declaration, petitioner stated he had
forgotten to take his psychiatric medications on the morning of
the plea and “due to [his] confusion and unstable mental state, he
mistakenly and inadvertently entered into a ‘no contest’ plea
without being in his right frame of mind.” He further declared he
“did not have his clear judgment and right frame of mind due to
his inadvertence and mistake in leaving his prescribed psych
medications at the county jail before being transported to court
for trial.” “Due to [his] unstabilized mental state at the time he
pled no contest . . . he was not in the right frame of mind to make
or enter into such a plea knowingly and voluntarily.”
8
The trial court held a hearing on the motion. Petitioner
testified. His counsel asked him, “What specifically didn’t you
understand about your plea?” Petitioner replied, “Uh,
everything. . . . A lot of things I didn’t understand when I took
my plea, such as admitting to prior strikes and other things such
as that nature.” Counsel asked, “Well, I mean, you’re aware that
you were convicted of vehicular manslaughter; correct?”
Petitioner replied, “Yes.” Counsel asked: “And that was
explained to you, that, notwithstanding your opinion, it was in
fact legally a strike; correct?” Petitioner replied, “Uh, no.”
Petitioner denied that he was aware he was being sentenced for a
second strike or that he was receiving time for great bodily
injury.
The prosecutor did not cross-examine petitioner. She
primarily relied on the transcript of the November 6, 2018 plea
proceedings to show petitioner understood the plea. She also told
the court the People had “numerous” recorded jail calls in which
petitioner discussed in detail the proffered plea bargain with a
male relative. She stated she had “personally heard [petitioner]
have discussions with his relatives on the phone about what we
wanted him to plead to.” The prosecutor also represented to the
court defense counsel had informed her what petitioner “did not
want to plead to and was pretty adamant about not wanting to
plead to was the attempted murder, that he made the conscious
decision. [¶] And the People allowed him to plead to this
[section] 273.5 for the 20 years, because he consciously and was
quite explicit about how he didn’t want to plead to the attempted
murder.”
9
In denying the motion the court found petitioner had not
met his burden of showing that his decision to accept the plea
offer was based on mistake, fraud, ignorance or duress.
Petitioner appealed the judgment of conviction. Appellate
counsel filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d
436; petitioner did not file a supplemental brief. We affirmed the
judgment of conviction. (People v. Westfield (Mar. 5, 2020,
B296012) [nonpub. opn.].)
DISCUSSION
A petition for writ of habeas corpus should “state fully and
with particularity the facts on which relief is sought.” (People v.
Duvall (1995) 9 Cal. 4th 464, 474 (Duvall).) “ ‘Conclusory
allegations made without any explanation of the basis for the
allegations do not warrant relief, let alone an evidentiary
hearing.’ ” (Ibid.) The burden is on the petitioner to establish
grounds for his release. We presume the regularity of
proceedings that resulted in a final judgment. (Ibid.)
We evaluate a writ petition “by asking whether, assuming
the petition’s factual allegations are true, the petitioner would be
entitled to relief. [Citation.] If no prima facie case for relief is
stated, the court will summarily deny the petition. If, however,
the court finds the factual allegations, taken as true, establish a
prima facie case for relief, the court will issue an OSC.
[Citations.] ‘When an order to show cause does issue, it is limited
to the claims raised in the petition and the factual bases for those
claims alleged in the petition. It directs the respondent to
address only those issues.’ [Citation.] Issuance of an OSC,
therefore, indicates the issuing court’s preliminary assessment
that the petitioner would be entitled to relief if his factual
allegations are proved.” (Duvall, supra, 9 Cal.4th at pp. 474-475.)
10
The return to the petition should “ ‘allege facts tending to
establish the legality of petitioner’s detention.’ [Citations.] . . .
The factual allegations of a return must also respond to the
allegations of the petition that form the basis of the petitioner’s
claim that the confinement is unlawful.” (Duvall, supra,
9 Cal.4th at p. 476.)
The petitioner’s traverse should either admit or dispute any
facts alleged in the return. Facts set forth in the return that are
not disputed in the traverse are deemed true. (Duvall, supra,
9 Cal.4th at p. 477.) If the factual allegations in the return are so
inadequate that the petitioner cannot answer them, the
petitioner may object. (Ibid.)
If the pleadings as a whole raise disputed issues of fact, we
may remand the matter to the trial court for an evidentiary
hearing. (Rose v. Superior Court (2000) 81 Cal. App. 4th 564, 574.)
Claims of ineffective assistance more often lend themselves to
resolution in an evidentiary hearing. (Id. at p. 575.)
A. As His Sole Ground for Relief, Petitioner Asserts
Ineffective Assistance of Counsel in Connection with
the Plea Agreement.
As his sole ground for relief, petitioner states trial counsel
“did not know the relevant law relating to vehicular
manslaughter and when such offenses can be characterized as
prior strike convictions; here, petitioner’s vehicular manslaughter
conviction was treated as a strike prior despite its [sic] not being
provable as a strike.” He also states “it is reasonably probable
that a result more favorable to petitioner would have occurred if
trial counsel had known that the petitioner’s prior conviction for
vehicular manslaughter was not a strike. Had trial counsel
adequately understood the law and reviewed the underlying
11
case’s admissible evidence, he should have concluded petitioner’s
prior conviction for vehicular manslaughter was not a strike, that
[petitioner] should not have been advised to admit that the prior
conviction was a strike, that [petitioner’s] plea agreement would
require a different and lawful aggregate sentence structure, and
that petitioner was facing a potential maximum sentence at trial
of substantially less than the 36 years presented to petitioner
should he be convicted on all counts following a trial.”
In his petition, Petitioner alleges facts in the record at trial
prove he “was concerned about, and disputed, the
characterization of his prior conviction for vehicular
manslaughter as a strike. (RT 25-26, 36-37) [¶] Facts outside
the record include petitioner’s counsel did not advise petitioner
that his vehicular manslaughter conviction could not be
characterized as a strike and instead advised petitioner that his
prior was a strike and that he should admit the same. (Exhibit A
[Declaration of Adam Westfield].) Further, material[s] provided
by trial counsel . . . indicate that further research into the
applicable law was required. (Exhibit B [Declaration of Paul
Stubb Jr.; Correspondence; Trial Counsel’s Research Notes].)
Further still, the underlying case file for the prior show[s] there
was no admissible evidence supporting the characterization of
petitioner’s vehicular manslaughter conviction as a strike prior.
(Exhibit C [Information in Case No. TA064028] & D [Reporter’s
Transcript of Plea Colloquy in TA064028].)”
Petitioner incorporates by reference the admissible records
from his prior vehicular manslaughter conviction and the record
on appeal from the underlying current case, and requests us to
take judicial notice of the same, which we do.
12
B. A Defendant Must Provide Corroborating Evidence
of Prejudice to Prove Ineffective Assistance of
Counsel in Connection with a Plea Agreement.
“A claim of ineffective assistance of counsel has two
components: ‘ “First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable. To establish ineffective assistance,
a defendant must show that counsel’s representation fell below
an objective standard of reasonableness. To establish prejudice,
he must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
(In re Vargas (2000) 83 Cal. App. 4th 1125, 1132-1133 (Vargas).)
“Our review of an attorney's performance is a deferential one.”
(Id. at p. 1133.)
“The pleading—and plea bargaining—stage of a criminal
proceeding is a critical stage in the criminal process at which a
defendant is entitled to the effective assistance of counsel
guaranteed by the federal and California Constitutions.” (In re
Alvernaz (1992) 2 Cal. 4th 924, 933 (Alvernaz).) “Although [the
decision to plead guilty pursuant to a plea bargain instead of
proceeding to trial is a decision ultimately] made by the
defendant, it is the attorney, not the client, who is particularly
qualified to make an informed evaluation of a proffered plea
13
bargain. The defendant can be expected to rely on counsel's
independent evaluation of the charges, applicable law, and
evidence, and of the risks and probable outcome of trial.” (Ibid.)
“ ‘It is well settled that where ineffective assistance of
counsel results in the defendant’s decision to plead guilty, the
defendant has suffered a constitutional violation giving rise to a
claim for relief from the guilty plea. [Citations.] [When the
contention is that incompetent advice led to a defendant’s
pleading guilty], 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.
[Citation.]’ [Citations.]” (Vargas, supra, 83 Cal.App.4th at
p. 1134.) “A defendant’s statement to that effect is not sufficient.
Rather, there must be some objective showing. (Cf. In re
Alvernaz, supra, 2 Cal.4th at p. 938.)” (Vargas, at p. 1140.)
In Alvernaz our Supreme Court “stated that a number of
factors were to be considered including, ‘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.’ [Citation.] ‘[A]n additional factor
pertinent . . . in determining prejudice may be the defendant's
stance at trial. For example, a defendant’s trial protestations,
under oath, of complete innocence may detract from the
credibility of a hindsight claim that a rejected plea bargain would
have been accepted had a single variable (sentencing advice) been
different.’ ” (Vargas, supra, 83 Cal.App.4th at p. 1141.)
14
C. Trial Counsel was Deficient in Failing to Inform
Petitioner His Vehicular Manslaughter Conviction
was Not Provable As a Strike.
Petitioner alleges only limited evidence is admissible to
establish the additional fact necessary to qualify vehicular
manslaughter as a strike prior. He further alleges none of the
admissible evidence concerning his prior conviction establishes
those necessary facts, and so, as a matter of law, his vehicular
manslaughter conviction is not a strike conviction.
Section 1192.7 lists the offenses qualifying as serious
felonies for purposes of the three strikes law. This list does not
specify the offense of vehicular manslaughter. However,
vehicular manslaughter may otherwise qualify as a serious felony
and therefore a strike offense if, in its commission, “the
defendant personally inflict[ed] great bodily injury on any person,
other than an accomplice.” (§§ 1192.7, subd. (c)(8); 1192.8,
subd. (a).) Personal infliction of injury on a non-accomplice is an
additional fact; it is not an element of vehicular manslaughter
and so on “a bare record showing only that defendant was
convicted by plea of violating section 192, subdivision (c)(1), we
can conclude at most that he admitted his grossly negligent
conduct proximately caused a death, not that he personally
inflicted great bodily injury.” (People v. Marin (2015)
240 Cal. App. 4th 1344, 1351 disapproved on another ground by
People v. Gallardo (2017) 4 Cal. 5th 120, 139, fn. 6 (Gallardo).)
“[A] court considering whether to impose an increased
sentence based on a prior qualifying conviction may not
determine the ‘nature or basis’ of the prior conviction based on its
independent conclusions about what facts or conduct
‘realistically’ supported the conviction. [Citation.] That inquiry
15
invades the jury’s province by permitting the court to make
disputed findings about ‘what a trial showed, or a plea proceeding
revealed, about the defendant’s underlying conduct.’ [Citation.]
The court’s role is, rather, limited to identifying those facts that
were established by virtue of the conviction itself—that is, facts
the jury was necessarily required to find to render a guilty
verdict, or that the defendant admitted as the factual basis for a
guilty plea.” (Gallardo, supra, 4 Cal.5th at p. 136.) When the
conviction is based on a plea, the court may consider the
information, the plea agreement, and the plea colloquy.
(Descamps v. United States (2013) 570 U.S. 254, 264, fn. 2
(Descamps); see Gallardo, at p. 137.)
Determinations about the nature of prior convictions are to
be made by the court, rather than a jury, based on the record of
conviction. (Gallardo, supra, 4 Cal.5th at p. 138.) The purpose of
this limitation is “to avoid forcing the parties to relitigate long-
ago events, threatening defendants with ‘harm akin to double
jeopardy and denial of speedy trial.’ ” (Ibid.)
Petitioner alleges the admissible evidence in this case does
not establish that he personally inflicted great bodily injury on a
non-accomplice. He attaches two of the three permissible
documents as exhibits C and D to the petition. Those exhibits
support petitioner’s allegations. The information charging
petitioner with vehicular manslaughter does not allege he
personally inflicted great bodily injury on a non-accomplice nor
does it allege the offense is a serious or violent felony. The
second document, the transcript of petitioner’s no contest plea,
shows he plead to a violation of section 192, subdivision (c)(1)
only.
16
The third document permissible under Descamps and
Gallardo to prove petitioner committed great bodily injury would
be a separate plea agreement. Respondent does not allege in its
return that such a document exists. Thus, we accept as true
petitioner’s allegation that his vehicular manslaughter was not
provable as a prior strike conviction as a matter of law.4
Petitioner further alleges his counsel was unaware of the
law and of the evidence needed to prove the additional facts
needed to qualify the conviction as a strike prior. We cannot
make such a finding on the evidence in the record. It is true
counsel was silent during the reported proceedings when the trial
court and the prosecutor stated their belief that the prior
conviction qualified as a strike. A competent attorney could have
had a tactical reason for failing to make a public correction of the
court or the prosecutor. While the research notes turned over by
trial counsel during these proceedings were short and did not
include a citation to Gallardo, we see nothing in the record to
4 Respondent alleges petitioner has failed to show there is no
evidence at all that he personally inflicted great bodily injury on
a non-accomplice. That is not the standard we use. For purposes
of determining petitioner’s maximum possible sentence, the
question is whether the trial court could find the vehicular
manslaughter conviction to be a strike. Only limited evidence is
available for that purpose.
There is no doubt that in order to obtain a favorable plea
agreement, a defendant may choose to admit a charge or an
allegation which has a factual basis even if the People may not be
able to prove the necessary facts. That is a different issue we
need not and do not reach at this time.
17
support an inference that these notes represent the total of his
legal research on the vehicular manslaughter conviction.5
Nevertheless, petitioner alternatively and correctly alleges
that even if defense counsel is aware of the relevant law, failing
to inform the client of that law can satisfy the defective
performance prong of an ineffective assistance of counsel claim.
(See, e.g., People v. McCary (1985) 166 Cal. App. 3d 1, 9; People v.
Plager (1987) 196 Cal. App. 3d 1537, 1542–1543.) Petitioner has
filed a declaration stating trial counsel told him the conviction
was a strike and the record on appeal shows trial counsel never
publicly stated the conviction was not provable as a strike as a
matter of law. Together with petitioner’s documentary evidence
showing the conviction was not provable as a strike, petitioner
has shown trial counsel gave him incorrect advice on the law.
This establishes deficient performance by counsel, satisfying the
first prong of the Strickland test.
D. There Are Disputed Issues of Fact About Whether
Petitioner Suffered Prejudice from Counsel’s
Deficient Performance.
In addition to showing deficient performance, a petitioner
seeking relief based on ineffective assistance of counsel must also
show a more favorable outcome was reasonably probable in the
absence of counsel’s error. There are disputed issues of fact on
this prong of the test.
5 The written research notes focus on timing issues related to
sections 1192.7 and 1192.8, and it is reasonable to view them
simply as a response to the trial court’s request for briefing on
those issues.
18
In the memorandum of points and authorities incorporated
into the petition, petitioner contends: “Absent trial counsel’s
deficient performance, petitioner would not have admitted the
strike prior in exchange for a 20 year sentence as opposed to the
24 year and four month maximum petitioner faced if he
proceeded to trial and was convicted on all counts and received
the upper term. Based on his trial counsel’s faulty advice,
petitioner clearly operated under an erroneous understanding of
the applicable law. Petitioner’s decision to accept the offer and
admit the prior was based on counsel’s ineffective assistance.
(Exh. A)”
Exhibit A is petitioner’s declaration. It consists of two
sentences: “I was informed by my attorney, Geoffrey Pope, that
my prior conviction for vehicular manslaughter was a strike
offense and that I had to admit to the same to obtain the benefit
of my no contest plea bargain. [¶] . . . I repeatedly informed the
court and Mr. Pope that I did not believe my prior conviction was
a strike offense but admitted the same after being informed by
my attorney that I was wrong.”
We note petitioner does not directly state in his declaration
that he would have rejected the offer if he had been correctly
informed that the vehicular manslaughter was not provable as a
strike. Nevertheless, it would be possible to infer that conclusion
from the declaration as whole if the declaration were consistent
with the record on appeal. The declaration, however, is
misleading on at least two points. The record shows the trial
court made an alternate offer, which did not require petitioner to
admit the strike. Petitioner declined the offer. In addition,
petitioner did repeatedly state his belief that the vehicular
19
manslaughter conviction was not a strike offense, but his reasons
for that belief were incorrect.6
Nevertheless, assuming petitioner’s declaration establishes
his claim that it was trial counsel’s advice that caused him to
accept the plea deal, the People’s return includes factual
allegations about petitioner’s earlier motion to withdraw the plea
which create a factual dispute. As the return summarizes,
petitioner sought to withdraw his plea in the trial court on a
different basis than the one he asserts now. In the trial court he
attributed his acceptance of the plea to mistake and confusion.
In his declaration in support of his amended motion to withdraw
his plea, petitioner stated that he failed to take his medications
on the morning of November 6, 2018 and then “due to the
[petitioner’s] confusion and unstable mental state, he mistakenly
and inadvertently entered into a ‘no contest’ plea.” At the
hearing on the motion in the trial court, petitioner testified that
there were “a lot of things I didn’t understand when I took my
plea, such as admitting to prior strikes.” Petitioner
acknowledged that he was aware of his prior conviction for
6 Petitioner claimed the prosecutor in the vehicular
manslaughter case agreed the conviction could not be used as
strike in the future and agreed the offense was a misdemeanor.
The plea transcript shows a straight plea to a felony offense, and
an advisement that the conviction might be used to increase his
sentence in the future. Petitioner also expressed a belief that an
“accident” could not establish the conviction as a strike, but
petitioner was charged with vehicular manslaughter involving
gross negligence. Petitioner may also have expressed some
concern that he entered his plea before a relevant amendment to
section 1192.7 was enacted, but section 1192.8 shows that
concern was unfounded.
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vehicular manslaughter. Defense counsel then asked, “And that
was explained to you, that, notwithstanding your opinion, it was
in fact legally a strike; correct?” Petitioner replied, “Uh, no.”
Petitioner also denied understanding that he was being
sentenced for a prior strike conviction or being aware that he was
receiving additional time for admitting the great bodily injury
allegation.
Petitioner’s trial court declaration and testimony that he
mistakenly agreed to the plea and did not understand its terms is
not consistent with his declaration that he admitted the
conviction in reliance on the erroneous advice of counsel about
the validity of the alleged prior strike in order to obtain the
benefit of his no contest plea bargain. This conflict alone requires
an evidentiary hearing.
Further, as the People point out in the return, a
defendant’s statement alone is not sufficient to show a reasonable
probability that he would not have pled guilty and would have
insisted on proceeding to trial, but for trial counsel’s error. There
must be some objective evidence corroborating defendant’s claim.
(Alvernaz, supra, 2 Cal.4th at pp. 938, 945; Vargas, supra,
83 Cal.App.4th at p. 1140.) Respondent contends the petition
does not identify such evidence.
In the traverse, petitioner does not address the prior
motion to withdraw or identify any additional evidence. He
simply repeats, almost word for word, his argument in the
petition. We understand petitioner is relying on the disparity
between the maximum sentence of 36 years communicated by the
prosecutor and the maximum sentence of 24 years, four months
calculated without the prior strike.
21
In determining whether a defendant would have accepted a
plea offer, we consider more than the incorrect information given
to a defendant, however. We consider a number of factors:
“including ‘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.’ ”
(Vargas, supra, 83 Cal.App.4th at p. 1141.)
The petition does not clearly show the full extent of trial
counsel’s advice. Petitioner declares trial counsel advised him he
would have to admit the prior strike to obtain the plea bargain,
but he does not directly state trial counsel advised him to accept
the bargain. The record on appeal shows trial counsel concurred
in the plea and stipulated to a factual basis, so it is reasonable to
infer that he did not oppose the plea, or advise petitioner against
taking it. This factor is essentially neutral.
Although not discussed by either party, two factors are
supported by the record and not reasonably subject to dispute:
The plea offer was discussed multiple times in open court,
petitioner asked questions about the specifics of the offer and
received accurate answers in open court, and there is no evidence
trial counsel made any private and conflicting statements to
petitioner about the terms of the offer. Petitioner was more than
amenable to negotiating a plea bargain, as shown by the
prosecutor’s uncontradicted remarks. These factors do not assist
petitioner in showing prejudice.
The disparity between the maximum sentence of 36 years
identified by the prosecutor and the maximum sentence of
22
24 years four months without the unprovable strike prior is
potentially a factor corroborating petitioner’s claim that he would
not have accepted the plea if he had been advised correctly.
There is no doubt that, in the abstract, a 20-year plea agreement
which avoids a maximum sentence of 36 years is much more
favorable and desirable than a 20-year plea agreement which
avoids a 24-year four month maximum sentence. Plea
agreements do not exist in an abstract hypothetical universe,
however. Thus, our Supreme Court has directed courts to
consider “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.” (Alvernaz, supra, 2 Cal.4th at
p. 938.) Petitioner does not discuss this factor in his petition,
that is, he does not discuss the probable consequences of
continuing with the trial. Conflicting inferences are possible
from the record.
Petitioner did not accept the offer until the middle of the
prosecution’s case-in-chief. The day before petitioner accepted
the plea offer, both victims had appeared for trial. Petitioner was
charged with two counts of dissuading Nicholson who was
reluctant to testify. Turner had been very seriously injured in
the attack with which petitioner was charged; she needed a
wheelchair and was physically unable to speak. By the time
petitioner accepted the plea offer, Nicholson, although still a
reluctant witness, had provided substantial testimony. The court
opined she was a sympathetic witness. Arrangements had been
made for Turner to testify by typing and using flashcards.
Nicholson’s testimony clearly increased the probability that
petitioner would be convicted of the charges involving her, which
alone carried a maximum sentence of five years, four months.
23
On paper, Turner sounds like she may have been a
sympathetic witness. Her preliminary hearing testimony about
the attack was solid, and there were photographs of her injuries.
Even if the jury only convicted petitioner of the corporal injury
charge with the great bodily injury allegation, petitioner was
facing a maximum 10-year sentence as to Turner. Petitioner
then faced the imposition of five 1-year enhancement terms for
prior prison terms. These combined sentences and enhancements
totaled a sentence maximum of 20 years, four months. From this
vantage point, the plea deal guaranteed a slightly shorter
sentence than the most likely outcome and eliminated the risk of
an extra four years if the jury convicted him of the attempted
murder charge (or an extra three years if it convicted him of the
mayhem charge). A reasonable attorney might well recommend
such a mid-trial plea to a client and a defendant might decide to
accept such a plea offer.
There is nothing in the record to show the probability of
petitioner being convicted on the attempted murder or mayhem
charges. There is some indication, in the form of the prosecutor’s
comments during plea negotiations, indicating petitioner was
quite averse to being convicted of attempted murder. Thus, even
in the absence of direct evidence about the likelihood of
conviction, there is a factual dispute about the consequences of
the plea viewed at the time the plea was accepted.
E. An Evidentiary Hearing in the Trial Court Is
Required.
There is no doubt as a matter of law petitioner’s prior
conviction was not provable as a strike, and as a consequence his
potential maximum sentence was 24 years four months, not the
36 years asserted by the prosecutor and the court. There is
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undisputed evidence trial counsel was deficient in failing to so
advise petitioner. However, petitioner did not accept the plea
offer until trial was well underway and there is conflicting
evidence that may undermine petitioner’s claim he would not
have accepted the plea offer had he had been informed of his true
maximum sentence. Resolution of the disputed issues identified
above is necessary to determine whether petitioner was
prejudiced by his counsel’s deficient performance.
DISPOSITION
This matter is remanded to the trial court for an
evidentiary hearing on the disputed issues identified in the
opinion. If the trial court finds petitioner has established
prejudice from trial counsel’s deficient performance, the
conviction is ordered vacated and the original charges reinstated,
with the exception of the strike allegation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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