Opinion
B161291.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. ARRICK ORLANDO HARRIS, Defendant and Appellant.
Balin & Kotler and Eileen S. Kotler for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Arrick Harris pleaded nolo contendere to one count of possessing cocaine base for sale. (Health & Saf. Code, § 11351.5.) The matter was filed as a third strike case, but appellant pleaded to a second strike and received a sentence of 10 years in prison. This appeal follows denial of his motion to withdraw his plea. He claims he received ineffective assistance of counsel when his trial attorney inadequately investigated the case, miscalculated his potential exposure, and erroneously advised him that he was subject to a term of 38 years to life if he proceeded to trial. We shall reverse and remand to permit appellant an opportunity to withdraw his plea.
PROCEDURAL HISTORY
The felony complaint
The complaint alleged possession for sale of cocaine base on May 22, 2001, in violation of Health & Safety Code section 11351.5. Two prior offenses were alleged pursuant to Health & Safety Code section 11370(a) and (c) (prohibiting probation). These were 1985 and 1988 convictions of Health and Safety Code section 11352(a) (transportation, sale, etc. of designated controlled substances.) The first was case A091204; the second was case A094420. The same two convictions were alleged pursuant to Health and Safety Code section 11370.2(a) (imposing consecutive 3-year terms for each prior conviction of certain drug offenses).
The complaint then alleged those same two convictions and five others (all except A091204 with a conviction date of February 1, 1988) pursuant to Penal Code section 667.5(b) and 667.5 (one-year additional and consecutive term for each prison prior unless five years between prison term and commission of offense). Five of those alleged prior convictions all were under case A094420 (February 1, 1988): Penal Code section 487.2; two counts of Penal Code section 245(a)(1); one of Penal code section 245(a)(2), and the Health and Safety Code conviction listed above. The seventh conviction was in case A095235, on February 1, 1988, for violation of Penal Code section 245(a)(1). As to all, the complaint alleged a term was served and defendant did not remain free of prison custody and did commit an offense resulting in a felony offense within five years.
Finally, the complaint alleged four of those same prior convictions (the ones alleging convictions of Penal Code section 245(a)(1) or (a)(2) on February 1, 1988, in cases A094420 and A095235) pursuant to Penal Code sections 1170.12(a) through (d) and 667(b) through (i).
The plea
Appellant appeared for arraignment on June 13, 2001, with his retained counsel. He pleaded not guilty and denied the special allegations. On July 31, 2001, his retained counsel announced appellant was going to plead and would like to return September 25 to get his matters in order. The court refused such a long continuance, stating it "too often . . . invites default," but reluctantly agreed to August 24 after the prosecutor set forth the terms of the plea.
Appellant was to plead to count 1 and the People would strike a strike at the time of sentencing, with appellant to receive the high term of five years times two, or 10 years in prison. However, if appellant did not return "it will be an open plea and [he] will be subject to a three strikes sentence."
The plea was taken, with appellant waiving his rights and agreeing he had discussed the case with his counsel. In explaining the consequences of his plea, the prosecutor stated "So the maximum confinement that you face in this case is 38 years to life in prison" and contrasted it with the 10 years he would receive pursuant to the plea, with the striking of all except one strike.
The parties now agree that 38 years was incorrect. If the District Attorneys usual policy was followed, the sentence would be 13 years; if not, the maximum sentence would be 28 years to life. Retained counsels failure accurately to inform appellant of the likely and actual possible sentences prior to his plea is at the heart of this appeal.
The prosecutor added that if appellant had other felony convictions, the People have the right to withdraw from the plea agreement and that, if appellant did not return on August 24, "this 10-year deal is off the table and you could be sentenced to the maximum term in prison." Appellant stated he was making his plea freely and voluntarily, pleaded no contest to count 1, and admitted suffering a prior conviction in case A095235 for a violation of Penal Code section 245(a)(1). There was no admission as to any other of the alleged prior convictions. The court accepted the plea and sentencing was set for August 24, 2001.
Appellant failed to appear on August 24, 2001. A bench warrant was issued, and appellant was picked up pursuant to the bench warrant and appeared on November 27, 2001. The next day, retained counsel was relieved on request of the defendant and the public defender was contacted. By December 5, appellant was represented by a deputy public defender who had not yet received the case file from prior counsel.
Hearing on motion to withdraw plea
On January 15, 2002, appellant filed a motion to withdraw his plea. The motion was supported with a declaration of appellant, in which he set forth his version of his conversation with retained counsel, and a declaration of his public defender, in which she recounted a conversation with retained counsel and a review of the file in case A094420, where, contrary to allegations in the complaint, there did "not appear to be any allegations of any drug offenses . . . ." In sum, the argument was that retained counsel had not properly reviewed the case and did not inform her client that it was likely his maximum sentence, if he went to trial and lost, would be 13 years. A copy of District Attorneys Three Strikes policy was attached to the motion.
The essence of appellants declaration was that his retained counsel pressured him into taking the plea for a 10-year sentence, which he would not have done had he been informed that under District Attorney Cooleys policy he would have faced a maximum of 13 years, not 38 years, in state prison. Instead, his attorney did not properly investigate the case, told him he would be taken into custody and face 38 to life even though he was innocent of the charges, and had to take the deal immediately. According to appellant, counsel told him she did not investigate the case or speak to the civilian witness listed in the police report. He entered his plea "not because I was guilty, but because I was told by my attorney that it was the only way that I could go home with my family and I believed [having been told so by counsel] that later I could get my plea withdrawn."
According to the public defenders declaration, retained counsel told her she had looked at "whatever the DA had [regarding the prior convictions] and that it appeared that the priors were valid." Moreover, when asked "about the quality of the Peoples offer, in light of the [District Attorneys] policy on not seeking life sentences on non- violent, non serious third strike cases, she seemed not to be familiar with the policy."
The matter was called on February 21, 2002, but appellants previous retained counsel did not appear; a body attachment was issued and held for her. On March 14, 2002, the court held a hearing on the motion to withdraw the plea. Appellants public defender asked the court to "take judicial notice and incorporate into the evidence on the motion to withdraw the plea not only the declarations [by appellant and his counsel] contained within, but the two court files that are present in court," A099420 and A095235. She added that after the Peoples witness, retained counsel, testified, "at that point, if I feel the need to rebut that issue, then either [appellant] could take the stand in rebuttal or could provide any other testimony that I thought would be appropriate." The People initially objected to admission of appellants declaration as hearsay but then agreed to accept his affidavit.
Appellants public defender otherwise offered to put her client on the stand and have the Peoples witness excluded.
Appellants retained counsel was the only witness at the hearing. According to her testimony, she had represented appellant ten years before in addition to representing him in the case at bench. The instant case was set for the Early Disposition Program (EDP), and counsel spoke with the EDP district attorney regarding a settlement. During those discussions, she was aware this was a three strike case and appellant had a maximum exposure of 25 years to life. The prior narcotic sale conviction would have added three years to the 25 to life.
Retained counsel looked at the D.A. files but not at the court files of the priors. She admitted that court file A094420, unlike the top of the D.A. file for that case, does not show any conviction for sections 113452, 11351 or 11351.5 of the Health and Safety Code. Her failure to investigate to see if the prior that was alleged was a valid prior "was an oversight." The head prosecutor "basically said that [appellants] record is so bad that it [the precise number of state prison priors] doesnt even matter. Its not going to make a difference in terms of our discussion."
According to retained counsel, she discussed the facts of the case, the strengths and weaknesses, and the risk of trial and possible outcomes with her client. In addition to telling him about a 25-to-life sentence, she spoke to Mr. Darden and Patty Harris at length, both of whom spoke with appellant for a couple of hours in the hallway. She begged the head deputy prosecutor for a better offer because appellant had kids and family and had been out of trouble for a long time. The head deputy reviewed the file and made a 10-year offer (the high term doubled) but refused counsels request for a five-year sentence.
She spoke to possible witnesses; they were "pretty combative" and "didnt really want to have anything to do with it" although they "were available as witnesses."
She remembers telling him 25 to life and calculating his legal maximum with the head deputy prosecutor, but could not remember what they calculated as the legal maximum. She told appellant it was a life case as a third strike case and the offer was a second strike offer. Patty Harris pointed out the five-year washout period on the one-year priors, and counsel told appellant, "but it didnt matter."
According to retained counsel, she was familiar with the policy published by District Attorney Cooley and this offer fit that guideline. She "guessed" that policy applied whether or not a defendant goes to trial.
Retained counsel discussed that 10-year offer with appellant, who asked her what he should do. Counsel told him it was up to him and had him talk to two other attorneys just to get additional opinions. Appellant was then out of custody and "felt like he was between a rock and a hard place and he wanted to stay out with his family and get his matters in order, so he took the [10-year] deal." She explained his constitutional rights, which he appeared to understand although he "was scared to death."
Moreover, appellant asked her in the hallway "Well, can I withdraw it?" Counsel replied "If you have good cause" or "you have to have good cause to withdraw your plea." He was "just trying to figure out how he could get out of it" and she told him his "luck ran out basically."
On cross-examination, retained counsel testified that the first time she spoke to appellant about a 10-year deal was "at the prelim," which was the day he plead. The deputy district attorney at that time told retained counsel that the $ 30,000 bail "was a mistake," it should have been a third strike bail, and the prosecution was going to ask to have appellant remanded after the preliminary hearing and the only way he could stay out of custody would be to take the 10-year deal that day. Seeing his family as much as possible was appellants primary motive for accepting the deal.
Retained counsel testified she knew there were no usable state prison priors of the seven alleged. She did not know one of the three-year priors was not any good. Neither was she aware that if appellant went to trial and lost, under District Attorney Colleys policy, appellants maximum sentence would have been 13 years. She did not correct the prosecutors recitation on the record that appellants maximum sentence was 38 to life and did not know at the time that that was not accurate.
By just looking at the complaint she thought appellant was facing six years for the state prison priors listed in the complaint. She had done no research on whether he could get separate time where all six commitments were done at the same time or how many of the priors would be usable.
Retained counsel agreed that under the policy, where 13 years was the maximum, "the 10 years would be a rather unreasonable offer" and that she did not tell appellant that if he lost at trial, his maximum would be only 13 years. She emphasized that she asked for five years in the first place but "again, my hands are tied. I told [appellant] This is the situation. They are going to take you into custody. We could still fight this."
The People conceded that there were errors on the complaint and that the maximum legal sentence was 28 years to life, not 38 to life. One of the three-year prior narcotics sales was incorrect and there was a five-year washout period. The prosecution argued that, nevertheless, a 10-year offer was the best he was going to get, there was nothing to foreclose the People from seeking 28 years, and no prejudice was shown.
The motion to withdraw appellants plea was denied. At the time of sentencing, the People and public defender agreed that appellant, who had admitted only one strike prior, could be sentenced to only a 10-year maximum, despite the Peoples caution he would be subject to other penalties if he failed to surrender. The court sentenced him to 10 years, the high term times two. The court signed a certificate of probable cause, and this appeal follows.
CONTENTION ON APPEAL
Appellant contends that the trial court abused its discretion and denied his right to the effective assistance of counsel under the United States and California Constitutions when it denied appellants motion to withdraw his plea. He asks this court to reverse and remand with instructions to permit him to withdraw his plea. Respondent counters that appellant has failed to demonstrate any reasonable probability that he would have declined to plead guilty and would have proceeded to trial if he had received different advice about his guilty plea, so as a matter of law he cannot succeed on his claim of ineffective assistance of counsel.
DISCUSSION
The trial court abused its discretion in denying appellants motion to withdraw his plea.
Appellant asserts that his original trial counsel fell below an objective standard of reasonableness under prevailing professional norms (In re Visciotti (1996) 14 Cal.4th 325, 351-352, 926 P.2d 987; accord In re Cox (2003) ___Cal.4th___), because she failed to investigate the validity of appellants prior convictions and whether these convictions fell within the meaning of the statutes cited by the prosecution in the information and incorrectly advised appellant he faced a 38-year-to-life term if he failed to accept the plea offer. According to appellant, his maximum legal exposure as a third-strike offender would be 28-years-to- life. Given the district attorneys second-strike criteria under which his exposure should have been measured, his maximum exposure actually would have been 13 years, the aggravated term of 5 years, doubled, plus the three-year enhancement.
As our Supreme Court stated in People v. Boyette (2003) 29 Cal.4th 381, 430: ""In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, [80 L. Ed. 2d 674, 693-694, 104 S. Ct. 2052] . . . .) Second, he must also show prejudice flowing from counsels performance or lack thereof. (Strickland, supra, at pp. 691-692 . . . .) Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citation.]." The final requirement, that "the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1157) is not at issue in the case at bench.
Penal Code section 1018 allows withdrawal of a plea of guilty and provides in relevant part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice." A plea of nolo contendere, as entered in the case at bench, "shall be considered the same as a plea of guilty ...." (Pen. Code, § 1016, subd. (3) .)
Our Supreme Court in People v. Cruz (1974) 12 Cal.3d 562, 566-567, 116 Cal. Rptr. 242, 526 P.2d 250, explained that "mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. (People v. Barteau (1970) 10 Cal. App. 3d 483, 486, ; People v. Brotherton (1966) 239 Cal. App. 2d 195, 200-201, , and cases cited therein.) But good cause must be shown by clear and convincing evidence. [Citations.].)" Accord People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797, 114 Cal. Rptr. 596, 523 P.2d 636 [upholding trial courts exercise of discretion in permitting withdrawal of plea where defendant had not been advised of collateral consequence of deportation].)
Whether good cause has been shown is reviewed under an abuse of discretion standard. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456-1457; In re Brown (1973) 9 Cal.3d 679, 685, 108 Cal. Rptr. 801, 511 P.2d 1153; People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.) Moreover, "A plea may not be withdrawn simply because the defendant has changed his mind. (In re Brown, supra, 9 Cal.3d 679, 686.)" (People v. Nance, supra, 1 Cal.App.4th 1453, 1456.) Respondent does not contend that appellants retained trial counsel accurately advised him of either the actual legal maximum for the offense and true priors or that she advised him of the District Attorneys published policy regarding nonviolent offenses under the Three Strikes Law. No one contests that "a defendant has a constitutional right to be represented by effective counsel. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Gideon v. Wainwright (1963) 372 U.S. 335 [83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 . . .].)" (Rose v. Superior Court (2000) 81 Cal.App.4th 564, 571) or that the pleading and plea bargain stage of the proceedings 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, 830 P.2d 747 [rejection of plea bargain, like entry of plea, based on ineffective assistance of counsel can be basis of writ relief, but only where defendant proves prejudice ].)
Respondent does not attempt to justify the conduct of retained counsel. Rather, respondents principal argument is that appellant has failed to demonstrate any reasonable probability that he would have declined to plead guilty and would have proceeded to trial absent any errors by his retained counsel. (See Hill v. Lockhart (1984) 474 U.S. 52, 57-59, 88 L. Ed. 2d 203, 106 S. Ct. 366, ["Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. [Citation.] [P] In addition, we believe that requiring a showing of prejudice from defendants who seek to challenge the validity of their guilty pleas on the ground of ineffective assistance of counsel will serve the fundamental interest in the finality of guilty pleas . . . "]. Accord In re Roberts (2003) 29 Cal.4th 726, 744 [re proof of ineffective assistance of counsel], citing In re Resendiz (2001) 25 Cal.4th 230, 239.)
In making the argument that there is no reasonable probability that appellant was prejudiced, respondent asks this court to consider appellants declaration as inadmissible hearsay that was not offered in evidence at the plea withdrawal hearing. The record on appeal belies that claim. Appellants public defender offered to have appellant testify and be cross-examined if the trial court was going to sustain the Peoples initial objection to appellants declaration. The People then agreed to let the court consider appellants declaration, which clearly stated appellant would not have entered the plea had he known the truth about his possible or likely sentence. (Compare People v. Williams (1973) 30 Cal. App. 3d 502, 510, 106 Cal. Rptr. 324, where defendant refused to be subjected to cross-examination, the Peoples objection to defendants declaration was sustained, and exclusion of the declaration was upheld; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 201, 999 P.2d 686, distinguishing Williams but ultimately not passing on the declaration before it.)
Aside from arguing the inadmissibility of appellants declaration, respondent does not contest that the declaration makes sense. One is far less likely to plead guilty to a 10-year sentence in order to save only three additional years in prison (assuming the likely sentence to be 13 years under the District Attorneys policy) than to prevent a sentence of 28 years or the admittedly erroneous 38 years stated in open court by the trial prosecutor who took the plea.
Next, respondent argues that retained counsel received a favorable plea bargain for her client. Given the charges, we agree that the plea bargain was favorable. But that does not mean that, given a likely sentence of no more than 13 years after trial, appellant may well have wanted to take his chances before a jury and, given the advice from his counsel and representation of sentence by the prosecution, did not have the opportunity to make that choice.
Furthermore, respondent argues that appellant has not demonstrated the District Attorneys policy of leniency in certain third-strike cases would have applied to him. That is, the policy created a second-strike presumption when the instant offense was as here neither serious nor violent; but respondent argued that that presumption was rebuttable under other aggravating factors, including a defendants character and background. Given his past conduct, appellants character and background might be evaluated to preclude second strike consideration. On the other hand, the head deputy prosecutor at the time of the plea gave appellant the benefit of second-strike treatment. Furthermore, the policy requires "that recommendation supported by a written memorandum should be referred to the appropriate Bureau Director for final decision" when the presumption is to be rebutted on such grounds as defendants character and background. In addition, the policy states that "The decision of whether or not to seek dismissal of a strike SHALL be made at the earliest practicable stage. Once that decision is made, it shall be promptly communicated to the court and defense counsel. This procedure shall be followed even if a defendant chooses to proceed to trial." (Italics added.)
When the current offense involves use or possession of a firearm or deadly weapon, injury to a victim, violence or the treat of violence, the Head Deputy may decline dismissal of a strike without a written memorandum.
"The plea of guilty constitutes an admission of every element entering into the offense charged, and constitutes a conclusive admission of defendants guilt. [Citation.] [P] A motion to withdraw a plea of guilty, pursuant to the provisions of section 1018 of the Penal Code [footnote omitted] is addressed to the sound discretion of the trial court, and in considering such a motion, the doctrines of "presumptive innocence" and "proof beyond a reasonable doubt" are inapplicable, since the defendant has already admitted his guilt by his plea of guilty. (People v. Outcault (1949) 90 Cal. App. 2d 25, 29-30 .)" (People v. Nance, supra, 1 Cal.App.4th 1453, 1456-1457.)
Appellant demonstrated that his case fell within the presumed second strike cases in the District Attorneys policy. It is true that the presumption may be rebutted, but there is no evidence that, despite appellants record, it was going to be rebutted by the District Attorneys office in order to proceed with this matter as a Third Strike case.
In People v. Johnson (1995) 36 Cal.App.4th 1351, 1357, Division Four of this court granted writ relief where trial counsel failure correctly to calculate the maximum potential sentence before permitting defendant to enter a plea and his second attorney failed to discover the error and raise it as a ground for withdrawal of the plea. Defendant in Johnson pleaded to a 20-year sentence, having been told by his attorney there was exposure of a 38.8 year maximum, a miscalculation of 11 years. (Id. at pp. 1354-1355.) The Johnson court concluded defendant was prejudiced by his attorneys errors and must be given the opportunity to withdraw his plea. (Id . at p. 1355, 1358.)
The Johnson court, supra, 36 Cal.App.4th 1351, 1358, noted that by "accepting the plea bargain, defendant believed he may have cut his sentence almost by half, from a potential 38 years to 20, which under any circumstances would be a powerful inducement to plead."
Respondent attempts to distinguish People v. Maguire (1998) 67 Cal.App.4th 1022, on which appellant relies. In Maguire, Division Three of this court granted defendants petition for writ of habeas corpus, allowing defendant an opportunity to withdraw his pleas. Before the plea in Maguire, defendants counsel had not advised him accurately regarding the dearth of legal authority to support two of the charges against him. In evaluating prejudice from the misinformation, the appellate court stated "We cannot assume, as do the People, the disposition offered to defendant would have been the same, had there been three rather than five counts." (67 Cal.App.4th 1022, 1032.) Respondent contrasts the case at bench, where the trial court stated that the head prosecutor after review of the file indicated the offer would not be reduced. Aside from the characterization of the trial courts statement as a "factual finding," while it was more accurately in the context of questioning the public defender during her argument to the court, any decision that the plea bargain offer would not be reduced begs the question. Appellant did not wish to withdraw his plea because the 10 year sentence in the abstract might be favorable but because, had he known his likely maximum sentence would have been 13 years instead of the reported 38 years, he may not have plead to the charges and may have gone to trial.
This is a close case. Appellants declaration was properly admitted. We are persuaded that the magnitude of erroneous advice given to appellant regarding his possible sentence (38 years) compared to the actual likely maximum (13 years) in relation to the sentence to which he pleaded (10 years) logically compels a conclusion that he should have been permitted to withdraw his plea and proceed to trial. If upon remand the prosecution decides to rebut its own usual policy or otherwise proceed to trial with a higher maximum sentence hanging over appellants head, appellant should be so informed prior to any election to withdraw his plea.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to provide appellant an opportunity to withdraw his plea if he so elects by filing an appropriate motion within 60 days of the issuance of the remittitur. If no such motion is filed, the judgment shall stand affirmed. The superior court has the power to extend the time for filing the motion, if required.
We concur: RUBIN, J., and BOLAND, J.