Opinion
C050654
12-12-2006
In re JOSE FRANCISCO NAVAS, On Habeas Corpus.
Through this habeas corpus proceeding petitioner Jose Francisco Navas raises a series of complaints about prior trial and appellate proceedings. We reject his claims.
FACTUAL AND PROCEDURAL BACKGROUND
Lassen County Case
On March 10, 1989, a jury convicted defendant of three counts of assault by a prisoner with a deadly weapon or by means of force likely to cause great bodily injury. (Pen. Code, § 4501.) On February 14, 1990, we affirmed those convictions (Lassen Co. Sup. Ct. No. 19872). (People v. Navas and Cervantes (C006475) nonpub. opn.)
Sacramento County Case
In 1998 petitioner faced charges of assault with a firearm, possession by a convicted felon of a firearm, possession of a sawed-off shotgun and unlawful possession of ammunition (Sacto. Co. Super. Ct. No. 97F07686). (Pen. Code, §§ 245, subd. (b), 12021, subd. (a), 12020, 12021.1.) Six prior convictions were alleged, three strikes, one serious felony and two prior prison terms. (Pen. Code, §§ 667, subd. (a), 667, subds. (b)-(i) & 1170.12, 667.5, subds. (a) and (b).)
On May 28, 1998, petitioner, represented by counsel, negotiated a guilty plea to possession of a firearm by a felon in exchange for the dismissal of all other charges, except that the facts of the assault charge could be used at sentencing. (See People v. Harvey (1979) 25 Cal.3d 754 (Harvey).) The prosecutor agreed to the deal because "The People do not believe . . . trial of the matter and conviction of the Defendant would result in any greater sentence."
The plea included petitioners admission to two strikes (two of the three Lassen County offenses), subjecting him to a 25-to-life sentence, as the court put it: "unless the Court at sentencing strikes one of his strikes and imposes a lesser sentence but . . . there is no promise to that effect. The Court will consider that and keep an open mind, but the maximum potential sentence in this case is 25 to life."
During the plea hearing the trial court outlined the terms of the plea including the Harvey waiver and the possible life sentence; petitioners counsel stated on the record that she had advised him of his rights and explained the terms of the plea, and petitioner confirmed this on the record. The court advised petitioner of the right to a jury trial, the right of confrontation, the right not to testify and the right to present a defense; defendant personally waived these rights in open court. He then pled guilty to possession of a firearm by a felon and admitted he had two convictions for assault by a prisoner "and that by reason thereof" he fell within the Three Strikes law.
On September 8, 1998, the trial court sentenced petitioner to prison for 25 years to life. Petitioners counsel waived "formal arraignment for judgment and sentence" and when the trial court asked whether there was "any legal cause why judgment and sentence should not now be pronounced?" she replied "No, your Honor." Petitioners counsel argued the Lassen County offenses represented a single event during a prison riot and claimed he was not a perpetrator but merely an aider and abettor. When the court expressed an intention to decline to strike a strike, counsel informed the court that petitioner told her he thought he was only facing 8 years and he wanted to withdraw his plea. The trial court denied this motion because "I took this plea myself. The record was very clear and Mr. Navas understood that." After the court pronounced sentence the following occurred:
"THE DEFENDANT: Your Honor, can I have a word — can I ask you something?
"THE COURT: You need to speak with your attorney and speak through your attorney first.
"[DEFENSE COUNSEL]: Your Honor, he is indicating that it was his understanding the Court also advised him that he could withdraw his plea when he came for sentencing.
"THE COURT: That is not correct and the transcript did not bear it out.
"I am going to advise you of your appeal rights, sir. [¶] . . . [¶]
"Do you understand you have a right to appeal?
"THE DEFENDANT: Yes, I do, your Honor, but
"THE COURT: All right. . . ."
Petitioner appealed and on November 19, 1999, we rejected the only claim raised, namely, that the trial court abused its discretion when it declined to strike a strike.
First Round of State Habeas
On June 12, 2000, petitioner sought a writ of habeas corpus in the California Supreme Court, raising the same claim he had raised on appeal. On September 27, 2000, the California Supreme Court denied his habeas corpus petition, with a citation to In re Waltreus (1965) 62 Cal.2d 218, at page 225. The cited case holds that "habeas corpus ordinarily cannot serve as a second appeal." (Ibid.)
Federal Habeas Petition
On October 27, 2000, petitioner sought federal habeas relief, based on the same issue, but on September 17, 2002, the U.S. District Court for the Eastern District of California, denied his petition for relief.
Second Round of State Habeas
On July 7, 2003, petitioner sought habeas corpus relief in this court, alleging the two priors he admitted in the Sacramento County case did not qualify as strikes because he only aided and abetted the Lassen County prison assaults leading to those convictions. He also alleged his trial and appellate attorneys had been incompetent for not properly challenging those convictions and not properly advising him. We issued an order to show cause, returnable in Sacramento County, "limited to the claim that petitioner received ineffective assistance of counsel in connection with petitioners plea admitting the allegations that he had two prior serious felony convictions within the meaning of the three strikes law." (In re Navas, C044456.)
On August 3, 2004, the trial court denied relief. Based on a review of the Lassen County trial record the trial court determined that because the prison assaults were committed by inmates with deadly weapons, whether or not petitioner was liable as a perpetrator or as an aider was irrelevant to the question whether the convictions qualified as strikes. As for the advice given by petitioners Sacramento County attorney in connection with his admission to the strikes:
"Counsel used the trial transcript to make the best possible argument in this case — that one of the strikes should be stricken. The court rejected that argument, and the decision was upheld on appeal. It would have been futile for counsel to advise Mr. Navas or the court that one or both of the strikes were not actually strikes. The record confirms that they were strikes. Counsel was not ineffective."
Third Round of State Habeas
In May 2005 petitioner filed another petition in Sacramento County, raising a new series of claims, namely, trial counsel misadvised him before his plea, the trial court failed to advise him about the consequences of admitting the priors and he was denied the right of allocution, that is, his purported right to address the trial court at sentencing. On July 13, 2005, the trial court denied relief. (Sacto. Super. Ct. No. 05F04777.) First, the court held petitioner did not show justification for filing another round of habeas attacks on his conviction. (See In re Clark (1993) 5 Cal.4th 750 (Clark).) Second, the claims lacked merit because petitioner could not show prejudice. Specifically, the trial court advised him of the rights he waived by his plea and the possibility he would receive a life sentence; further, counsel was allowed to address the court at sentencing.
On September 9, 2005, petitioner filed the instant petition, essentially reiterating the claims raised in his third state habeas petition. In his supporting declaration petitioner avers that he relies on the help of jailhouse lawyers, that in January 2005 he received help from inmate Mena, who advised petitioner that the trial court had misadvised him about the rights he waived when he admitted the strikes and that he did not know he had a right to a trial on the priors; petitioner alleged that those issues had not been raised earlier out of his own ignorance. Menas declaration confirmed that he (Mena) had told petitioner about petitioners right to allocution and the trial courts alleged failure to give proper advice about the priors. Petitioner did not declare that all of the issues raised in the current petition were newly discovered.
In any event, after considering informal briefs we issued an order to show cause on December 9, 2005, returnable before this court. The People filed a formal return and petitioner filed a traverse.
LEGAL STANDARDS
A restrained convict may seek post-conviction relief by showing the conviction is infirm. (Cal. Const., art. VI, § 10; Pen. Code, § 1473 et seq.; see people v. Romero (1994) 8 Cal.4th 728, 736-737 (Romero).)
"The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." (In re Dixon (1953) 41 Cal.2d 756, 759 (Dixon).) Even where an exception to the general rule applies, a petitioner must have a good reason for not raising an issue on direct review, and must always act timely when he or she learns of a new ground for relief. (See Clark, supra, 5 Cal.4th at p. 765.)
The petition, return and traverse function somewhat like civil pleadings by narrowing the issues under consideration. (Romero, supra, 8 Cal.4th at pp. 737-739, 742, fn. 9.) If it appears the facts stated in the petition would, if true, warrant relief, the court may issue an order to show cause. The return may then allege facts defeating the claim for relief, which may be contested by a traverse. If and only if "material" factual disputes remain must the court conduct an evidentiary hearing. (See People v. Duvall (1995) 9 Cal.4th 464, 474-479.)
DISCUSSION
We will discuss each of the five grounds specified in the current petition seriatim, although the claims overlap.
I. Competence of Counsel
Petitioner claims trial counsel was incompetent because she failed to advise him of his constitutional rights regarding the priors and misadvised him that he was facing a possible sentence of eight years. He also contends trial counsel "misled petitioner into believing that a Harvey waiver involved restitution fines." The claim is barred, and lacks merit.
In order to obtain relief petitioner must show trial counsel made one or more mistakes and absent the mistake(s) a more favorable result would be reached. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218; see Hill v. Lockhart (1985) 474 U.S. 52 [petitioner claiming misadvice as to plea bargain must show prejudice].)
At the time of sentencing in September 1998 petitioner learned in an unmistakable way that he was not facing eight years, but instead a life sentence. Subsidiary issues leading to his sentence, namely, misadvice about the Harvey waiver and the rights he was waiving were encompassed by our September 2003 order to show cause: We ordered the matter returnable to explore the claim that "petitioner received ineffective assistance of counsel in connection with petitioners plea" in admitting the strikes. Petitioner did or could have included all of the current claims in that proceeding. "Denial of the right to effective assistance of counsel is one trial error which is cognizable on collateral review whether or not it was raised on appeal. [Citations.] However, any significant delay in seeking collateral relief on this ground must be fully justified." (People v. Jackson (1973) 10 Cal.3d 265, 268; see Clark, supra, 5 Cal.4th at p. 782.)
Moreover the trial court properly advised petitioner of the possible life sentence, and about the rights waived by his plea, and he cannot establish that absent counsels alleged misadvice he would have acted differently.
As for the alleged misadvice about the scope of the Harvey waiver, we have two responses. First, petitioner fails to allege that absent the Harvey waiver the trial court might have stricken a strike, therefore he cannot show the alleged failing by counsel made any difference. Second, the trial court clearly explained the scope of the Harvey waiver. Shortly after trial counsel assured the trial court that she had "explained the consequences of a Harvey waiver that will be given as to Count 1" to petitioner, the trial court advised "Although Count 1 will be dismissed as part of this plea, it is agreed that I may nevertheless consider the facts underlying that dismissed count, including ordering any restitution, if that is applicable, in deciding your sentence as to the count which you are pleading. This is called a Harvey waiver. [¶] Do you understand and agree to that? [¶] THE DEFENDANT: Yes." Even if counsel told petitioner the waiver was only for restitution, the trial court disabused him of such notion before he entered his plea. Therefore, counsels alleged misadvice was harmless.
II. Advisement of Rights
Petitioner contends the trial court did not properly advise him regarding the rights he gave up by admitting the prior convictions.
This claim is untimely because it could have been but was not raised on direct appeal from the conviction. (Dixon, supra, 41 Cal.2d at p. 759.) Further, it was not raised in earlier state habeas proceedings, and petitioners only justification is he only recently learned from a jailhouse lawyer that the trial court had erred. That is not a sufficient excuse for years of inaction.
"Petitioner has the burden of establishing the absence of `substantial delay. Substantial delay is measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. If a petitioner fails to allege particulars from which we may determine when the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim, he or she has failed to carry the petitioners burden of establishing that the claim was filed without substantial delay.
"A petitioner does not meet his or her burden simply by alleging in general terms that the claim or subclaim recently was discovered, . . . He or she must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time-and he or she bears the burden of establishing, through those specific allegations (which may be supported by relevant exhibits; [citation]), absence of substantial delay." (In re Robbins (1998) 18 Cal.4th 770, 787.)
Although perhaps petitioners declarations, if broadly construed, show he did not actually know of the purported legal significance of the failure of the trial court to separately advise him of his rights regarding the priors, he failed to show he should not reasonably have known of the legal significance earlier. (See Clark, supra, 5 Cal.4th at p. 774-775 [petitioner who suspects relief might be available must act diligently to pursue claim].) His assertion that he is not a lawyer and relies on jailhouse lawyers does not satisfy his duty to show with specificity why his belated claim should be heard at this time.
In any event, petitioner cannot show prejudice. The trial court explained the contours of the plea, including both the admission of guilt to one count, the dismissal of another with a Harvey waiver and the admission to two strikes, and then advised petitioner and took waivers of his Boykin-Tahl rights (Boykin v. Alabama (1969) 395 U.S. 238 ; In re Tahl (1969) 1 Cal.3d 122).
We agree with petitioner that a trial court must advise a defendant of the constitutional rights regarding admission of a prior conviction. (See In re Yurko (1974) 10 Cal.3d 857.) However, we reject petitioners claim that a trial court must separately take waivers of petitioners rights in connection with the priors. Although Yurko requires "express and specific admonitions as to the constitutional rights waived by an admission" (id. at p. 863), Yurko does not require repetitive admonitions:
"[W]here there is nothing in the manner in which the plea is taken which actually or in effect separates the substantive offense from the prior conviction allegation, a single express advisement and waiver of defendants constitutional rights is sufficient under Boykin, Tahl and Yurko. In this case, defendants plea to the substantive offenses and admission of the prior convictions occurred in a single proceeding and were not actually separated in time. Nor did the magistrate separate the substantive offenses from the prior conviction allegations, in effect, by the manner in which the advisement was given and the waiver was taken, . . . Accordingly, we conclude that the single express advisement was sufficient in this case to inform defendant of each of his constitutional rights, including his right to a jury trial, with respect to both the guilty pleas to the substantive offenses and the admissions of the prior convictions and that defendant, as reflected in the record, knowingly waived each of those rights." (People v. Forrest (1990) 221 Cal.App.3d 675, 681.)
People v. Christian (2005) 125 Cal.App.4th 688, cited by petitioner, stands for the proposition that advisements must include the privilege against self incrimination and the right of confrontation, not merely the right to a jury trial; it does not disapprove of the practice of combining the waivers pertaining to substantive offenses and prior allegations. (Id. at pp. 697-698.) The cited case does not advance petitioners claim.
III. Allocution
Petitioner contends the trial court denied him the right of allocution, that is, the right to address the court at sentencing. He claims that had he been allowed to speak he would have told the court that the reason he remained silent during the plea hearing "was because the law precluded the prosecutor, under section 1192.7, from plea bargaining [in a] case alleging serious criminal behavior."
Penal Code section 1200 provides:
"When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him."
Petitioner claims the Sacramento County trial judge violated this statute, and his due process rights, by refusing to allow him to speak at sentencing. The People correctly contend that this claim is barred because it could have been raised in petitioners direct appeal. (Dixon, supra, 41 Cal.2d at p. 759.)
Petitioner justifies raising this claim now on the ground that he has been assisted by jailhouse lawyers and that he was unaware of his purported right to allocution until so advised by a fellow inmate in January 2005. But he was aware of the facts supporting the claim at the time of the sentencing hearing. His declaration does not excuse eight years of inaction.
Also, on October 12, 1998, in connection with his appeal from the Sacramento County conviction, petitioner filed a successful application for certificate of probable cause. In part he alleged under penalty of perjury that trial counsel had advised him he would receive eight years in prison if he accepted the plea bargain and that she believed his priors would not qualify as strikes because he had been an aider and abettor; "The Judge also advised me that if her sentence was not satisfactory to me that I would be able to withdraw my plea, to continue on to trial." Further, "I tried to withdraw my plea and was denied the right to do [so]. I also asked the Judge if I could speak directly to her and was denied that also." (C030978.) Thus, as of 1998, petitioner knew the facts necessary to pursue his claim of denial of allocution.
Further, contrary to the allegation in petitioners current petition, the People were not precluded from entering into the bargain because they were of the view, that since he would likely receive a life sentence anyway, the dismissal of some charges "would not result in a substantial change in sentence," an exception to the proscription on plea bargaining. (Pen. Code, § 1192.7, subd. (a).) Therefore, we reject his claim that he had a good reason for remaining silent at the plea hearing.
We are aware that the question whether a trial court must allow a defendant to address the court personally at sentencing is now pending before the California Supreme Court. (People v. Evans, S0141357.) However, the denial of such purported right would be harmless in this case because petitioners assertion that anything he might have said at sentencing would have led the trial court to strike a strike or do anything else differently rests on speculation. He was represented by counsel who pressed mitigating points and he has failed to show prejudice. (See People v. Ornelas (2005) 134 Cal.App.4th 485, 487-489 [assuming violation of purported right of allocution, the error was harmless].)
In particular, petitioner claims he would have told the court that he was not the aggressor, did not possess a sawed-off shotgun and "never placed any weapon or gun to the alleged victims face;" and that "the charge alleged by the prosecutor could not be proved." His declaration does not explain why, if he was innocent, he pleaded guilty, even if he expected merely eight years. Further, the shotgun charge was dismissed outright and caused him no prejudice: The charge of felon-in-possession was based on his possession of a .45 semi-automatic pistol. Given that the trial court imposed a Three Strikes sentence, what petitioner claims he would have said would have made no difference.
IV. Trial Courts Failure to Qualify Priors
Petitioner claims the trial court failed to determine whether or not the priors qualified as strikes. This issue is barred because it could have been but was not raised on direct appeal. (Dixon, supra, 41 Cal.2d at p. 759.) Further, this claim was litigated when the trial court denied petitioners second round of habeas claims in August 2004 and for that reason, too, is barred. (In re Miller (1941) 17 Cal.2d 734, 735.)
Further, the trial court properly accepted petitioners admission that "by reason of" the priors he fell within the Three Strikes law. Because petitioner admitted that circumstance, there was no need for the trial court to adjudicate the issue or make any finding thereon. (See People v. Thomas (1986) 41 Cal.3d 837, 842-845.)
Finally, on the merits, the two priors qualify as "strikes," as we explain in the next section.
V. Competence of Counsel, Redux
Petitioner claims both trial and prior appellate counsel failed in their duties to attack his prior convictions. This claim is barred because it hinges on a showing that the priors were not strikes, an issue resolved against petitioner on the merits during his second round of habeas corpus. (See In re Miller, supra, 17 Cal.2d at p. 735.)
In any event, we find his prior convictions qualified as strikes, and therefore he cannot show prejudice.
Generally, "every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony" as provided by Penal Code section 4501.
Penal Code section 1192.7, adopted as part of Proposition 8, defines "serious" felonies for purposes of limitations on plea bargaining, and by incorporation that list also partly defines which prior convictions qualify as strikes under the Three Strikes law. (See Pen. Code, § 667, subd. (d)(1).) A serious felony includes "(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; . . . (13) assault with a deadly weapon by an inmate; . . . (23) any felony in which the defendant personally used a dangerous or deadly weapon; . . ." (Pen. Code, § 1192.7, subd. (c).)
It has been held that "Where a defendants prior conviction is for assault, the conviction will qualify as a serious felony strike only if the defendant used a deadly weapon in connection with the crime." (People v. Houck (1998) 66 Cal.App.4th 350, 354 (Houck).) But there is no personal use limitation if the assault with a deadly weapon is by an inmate. (Pen. Code, § 1192.7, subd. (c)(13).) The Legislature omitted the requirement of personal use in the case of inmate assaults in this statute. (People v. Equarte (1986) 42 Cal.3d 456, 464-465 ["defendants can be found to have committed a serious felony under the aggravated assault categories [including assault by an inmate under subd. (c)(13)] if they are simply accomplices in the aggravated assault and so those categories include persons who would not fall under subdivision (c)(23)"].) As the trial court found, ruling on habeas corpus, it is thus irrelevant whether petitioner was a principal or an accomplice; if either petitioner or an inmate-accomplice used a deadly weapon the conviction qualifies as a strike.
The return admits that in the second round of habeas corpus the trial court found petitioner and his cohorts used deadly weapons on three victims. Petitioner cannot relitigate that finding now.
Further, the record of conviction (including the trial transcript, see Houck, supra, 66 Cal.App.4th at pp. 355-357) shows that on July 23, 1988, petitioner and his cohorts had prison-made weapons consisting of sharpened metal welding rods; petitioner was seen stabbing one victim with what looked like an ice pick; codefendant Cervantes stabbed another victim; petitioner also attacked a victim with the help of inmate Cardenas and then possibly with the help of inmate Frias. Several prison-made weapons were found at the scene. Petitioner testified he was injured in the melee but did not stab anybody. The prosecutor argued that deadly weapons were employed; the defense was that petitioner had been misidentified and had nothing to do with the incident, not that deadly weapons had not been employed; indeed, counsel conceded the victims had been at least cut, although he alternatively argued some of the injuries were not very serious. But the fact remains that deadly weapons were used and therefore it does not matter whether the Lassen County jury found petitioner personally wielded a weapon.
DISPOSITION
The order to show cause is discharged and the petition for writ of habeas corpus is denied.
We Concur:
DAVIS , Acting P.J.
RAYE, J.