Opinion
No. C 02-5480 CRB (PR).
June 23, 2004
MEMORANDUM AND ORDER
Mitchell Bedolla Garcia seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from the Superior Court of the State of California in and for the County of Santa Clara. In a Memorandum and Order issued on December 4, 2003, the Court determined that Garcia was entitled to an evidentiary hearing on his claim that counsel was ineffective in connection with his advice that Garcia not take the plea bargain offered him before trial. On May 20, 2004, the Court conducted such an evidentiary hearing. After carefully considering the memoranda submitted by the parties, and having had the benefit of the evidentiary hearing, the Court hereby GRANTS the petition for a writ of habeas corpus.
BACKGROUND
The Court's prior Memorandum and Order described the background facts of this case and the legal standard for a habeas petition. Such background will not be repeated here.
DISCUSSION
Garcia claims that his trial counsel, Paul Noboa, was constitutionally ineffective because counsel did not accurately advise him as to the maximum possible sentence that he could receive if he proceeded to trial, which caused Garcia to reject the offered plea bargain that he would have accepted had he been properly advised. In particular, Garcia asserts that trial counsel advised him to reject an "indicated disposition" by the trial court judge of 12-13 years because the maximum sentence he could receive was 18 years and because counsel could get him 13 years even if he proceeded to trial and was convicted. Garcia proceeded to trial, was convicted and was sentenced to 23 years and 6 months. The actual maximum sentence that Garcia could have received was 25 years and 6 months. Garcia claims that counsel's advice amounted to ineffective assistance because counsel incorrectly advised him that the maximum sentence he could receive was 18 years and because, had counsel correctly advised him that the maximum sentence he could receive was 25 years and 6 months, he would have accepted the plea offer of up to 13 years and would not have proceeded to trial.In order to prevail on an ineffective assistance of counsel claim, a habeas petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The Court finds that Noboa's mischaracterization of the maximum sentence was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms. While there is some dispute as to the actual language Noboa used to communicate the maximum possible sentence to Garcia, both Noboa and Garcia testified that the message communicated to Garcia was that the maximum possible sentence he would receive if he went to trial was 18 years. In other words, whether Noboa stated that Garcia would get 18 years as a predication of what the judge would do or Noboa stated that the maximum Garcia could get under the law was 18 years, it was reasonable for Garcia to believe that he was facing a maximum of 18 years in prison. Noboa concedes that even under his version of his conversation with Garcia, Garcia did not know that he was facing a maximum sentence of 25 years and six months.
While the state contends that this was not a "gross mischaracterization of a likely outcome of the case" and therefore does not constitute deficient performance, citing Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986), that argument is without merit. The actual maximum possible sentence was 25 years and six months — a seven and one-half year difference from what Garcia understood the maximum to be. This difference is significant, and the Court finds it to be a gross mischaracterization of the outcome of the case. Noboa concedes that he "erred" and made a mistake by not telling Garcia that he could get 25 years and six months. Moreover, the Court finds that Garcia reasonably believed based on his conversations with Noboa that the maximum sentence he would receive if he went to trial was 18 years. Accordingly, the Court concludes that Garcia has met the first prong of the Strickland analysis by establishing that Noboa's performance was deficient insofar as he misled Garcia as to the true maximum sentence he was facing.
The focus of the evidentiary hearing, however, was not on the first prong of the Strickland test. Rather, the more contested issue is the second prong of the Strickland analysis: whether Garcia has established that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Id. There is no dispute that the proceedings would have been different and, therefore, Garcia would be prejudiced if it is determined that he would have accepted the offer. Additionally, there is no dispute that the offered plea bargain would have been approved by the trial court because it was an "indicated disposition" from the trial court, not an offer from the district attorney. Thus, the primary question for the Court is whether there is a reasonable probability that Garcia would have accepted the offer had he been given accurate information and appropriate advice by his counsel.
The Ninth Circuit addressed a similar issue in Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003). In Nunes, the court held that a habeas petitioner had established prejudice under the second prong of Strickland after showing that his attorney incorrectly reported the state's offer of an 11-year sentence as an offer of a 22-year sentence. The court reiterated that the right to counsel during the plea bargaining process is clearly established under Supreme Court law and California law. See Nunes, 350 F.3d at 1053 n. 4 (citing Jones v. Barnes, 463 U.S. 745, 751 (1983) and In re Alvarnaz, 2 Cal.4th 924 (1992)). "While clearly established Supreme Court law provides that counsel's incompetence must deprive the defendant of a substantive or procedural right to rise to a constitutional violation, it does not require that the federal Constitution be the source of the substantive or procedural right being deprived." Id. at 1053 n. 4. Thus, Garcia may establish ineffective assistance of counsel by showing that Noboa's failure to provide adequate assistance of counsel under California law constituted a violation of the federal constitution.
In Alvarnaz, the California Supreme Court denied a habeas petitioner's federal constitutional claim that he had received ineffective assistance of counsel based on his counsel's advice during plea bargaining. Alvarnaz, 2 Cal.4th at 945. In that case, the petitioner's counsel advised the petitioner that should he go to trial and be convicted, he would face a maximum term of eight years, with a probable net sentence of four years, and he had a seventy to eighty percent chance of winning at trial. Id. at 930-31. Petitioner refused the prosecution's plea offer that would have resulted in a maximum exposure of five years. Id. at 930. After a jury convicted petitioner, he was sentenced to concurrent sentences including life without parole. On habeas, petitioner argued that he received ineffective assistance of counsel because the actual term of confinement for his offenses was a minimum of 16 years and 7½ months. The court denied the habeas petition because it found that the petitioner failed to establish a reasonable probability that, had he accurately been informed of his potential life sentence and prison confinement for 16 years and 7½ months prior to parole, he would have accepted the plea bargain offered. Id. at 945.
The Alvarnaz court explained that the following factors should be considered in determining whether a defendant would have accepted a plea offer if he had been given accurate information: "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 amendable to negotiating a plea bargain." Id. at 938.
Garcia stated at the evidentiary hearing: "I would have definitely took the deal if I knew I was risking 13 years as opposed to five" — the difference in exposure between the 18 year maximum as communicated by Noboa and the actual maximum of 25 years and six months. Tr. 107:20-21. But the Court's inquiry does not end there. The Court must make inferences and credibility determinations to evaluate whether Garcia would have actually accepted the offer at the time or whether this is merely a self-serving statement based on hindsight. The Court's observation of the petitioner and his counsel at the evidentiary hearing provide the most valuable information to make such determinations. See Nunes v. Mueller, 350 F.3d 1045, 1055-56 (9th Cir. 2003).
Having observed Garcia and Noboa testify at the evidentiary hearing, and having had an opportunity to evaluate their credibility, the Court concludes that Garcia has met his burden to show that there is a reasonable probability that, but for counsel's errors, he would have pleaded guilty and would not have insisted on going to trial. See id. The Court finds Garcia's statement that he would have accepted the offer if he were properly advised of the risks to be credible and not merely self-serving. While the law is unclear as to whether it is necessary for the Court to find independent corroboration in order to deem petitioner's statements sufficient, see Nunes, 350 F.3d at 1055 n. 6, the testimony of Noboa and a letter introduced by plaintiff establishing that he had contemplated a ten-year prison term sufficiently corroborates Garcia's testimony. Additionally, the Court's determination that Garcia himself was an extremely credible witness discounts the need for a great deal of corroboration.
In order to reach this conclusion, the Court first looks at whether counsel actually and accurately communicated the offer to the defendant. While Noboa told Garcia that the judge had offered an indicated disposition of 12-13 years, that offer was communicated in the context that Garcia would be facing a maximum of 18 to 19 years in prison. Thus, while the indicated disposition was indicated accurately, the information necessary to understand the plea in its proper context was not. Moreover, the Court finds that Garcia's allegation that Noboa told him that he could get him 13 years even if he proceeded to trial and was convicted to be another consequence of the miscommunication between Noboa and Garcia. Thus, while the Court has taken this statement into account to evaluate Garcia's overall credibility, it has not considered this allegation in determining whether Garcia has sufficiently established ineffective assistance of counsel. The Court finds the remaining portions of Garcia's testimony to be credible.
Second, the Court looks at the advice, if any, given by counsel. Garcia argues that he was given no advice, and Noboa does not disagree. Rather, Noboa asserts that he made a mistake and should have urged Garcia to take the offer. The Court notes that petitioner was nineteen years-old at the time, and regardless of how strong-willed he was, it was critical for petitioner to receive counsel and advice at this stage of the litigation. Nonetheless, Noboa did not give him the necessary advice and the information given was inaccurate.
Third, the Court looks at 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. Here, the proposed indicated disposition was for 12-13 years, which was six years less than the maximum Garcia understood he was facing. In reality, there was a 12½ year disparity between the actual maximum sentence and the indicated disposition. Thus, the indicated disposition was half the maximum. Looked at another way, the disparity was twice as much under the actual maximum rather than the inaccurate maximum communicated by Noboa. The Court finds this disparity to be significant.
Fourth, the Court looks at whether Garcia indicated he was amendable to negotiating a plea bargain. The state argues that Garcia adamantly asserted his innocence and was not amenable to a plea bargain. However, the evidence adduced at the evidentiary hearing counters this assertion. Garcia and Noboa testified that they had numerous conversations about a plea, and Garcia was told that no plea could be reached unless the gun enhancement was stricken. Garcia and Noboa both testified that Garcia repeatedly asked whether the enhancement had been stricken. It is a logical inference that given Garcia's understanding that he could not negotiate a plea with the gun enhancement intact, his repeated questioning about the disposition of the enhancement was an indication that he wanted to be in a position to enter a plea. While Garcia initially asserted his innocence, Garcia testified that while confined prior to trial he had seen numerous people go to trial, none of which were acquitted. He also heard the witnesses testify at his preliminary hearing and found them to be credible and sympathetic. Additionally, Garcia had a risky defense: his asserted defense was that what had happened was not an armed robbery, but a drug deal gone bad. Finally, Noboa corroborated Garcia's uncertainty about going to trial and the risk involved in going to trial. Although Garcia asserted his innocence at trial, by that time he had no other option. Given the evidence adduced at the evidentiary hearing, the Court finds that Garcia was amenable to negotiating a plea bargain.
Accordingly, the Court finds that Garcia established that there is a reasonable probability that, had counsel correctly advised him that the maximum sentence he could receive was 25 years and 6 months, he would have accepted the plea offer of up to 13 years and would not have insisted on going to trial. Every decision to reject a plea offer is in part a determination that the sentence offered is too long; however, that determination is based on a comparison of all the options and possibilities, including the maximum possible sentence one faces if found guilty after trial. Here, the actual amount of additional time beyond the plea offer that Garcia would serve if given the maximum sentence was more than twice that calculated by counsel (12 years, rather than 5 years), and the actual amount of additional time beyond the plea offer that Garcia would serve if given the maximum sentence was nearly twice the amount of time he would serve if he accepted the plea offer. The substantial miscalculation by counsel altered the light in which the plea offer was considered by both Garcia and counsel. Garcia's evaluation of the 12-13 year offer was made in light of the potential 18 year maximum that he reasonably believed he faced if he went to trial. Thus, when faced with the maximum possibility of 25 years and 6 months in prison, it is reasonably probable that Garcia would have concluded that 13 years was not too long to be in prison, but that when faced with the maximum possibility of 18 years in prison, 13 years was too long.
The Court now turns to the appropriate remedy. As the Ninth Circuit explained in Nunes, "any habeas remedy `should put the defendant back in the position he would have been in if the Sixth Amendment violation never occurred.'" Nunes, 350 F.3d at 1057 (quoting United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994)). In some circumstances, as here, granting a new trial is not the appropriate remedy. See id. Rather, the appropriate remedy may justify that the state be given the option of releasing the petitioner or putting the petitioner "in the same position he would have been in had he received effective counsel." Id. The Court concludes that the appropriate remedy in this case is to give the state such an option. It may release Garcia or it may give him a sentence not to exceed 13 years as provided in the indicated disposition, thereby putting Garcia in the same position he would have been in had he received effective counsel. It will be for the state court judge to determine whether the sentence should be 13 years or less, but under no circumstances should it exceed 13 years.