Opinion
A112947
4-27-2007
In re TYRONE COOPER, on Habeas Corpus.
NOT TO BE PUBLISHED
I. INTRODUCTION
Pursuant to Penal Code, section 1506, the People appeal from a habeas corpus order overturning Tyrone Coopers 1999 conviction for felony assault with an enhancement for personal infliction of great bodily injury and vacating Coopers sentence in a 2000 case because it was based, in part, on the 1999 prior conviction. The trial court granted Coopers habeas petition because it found that Cooper was denied the effective assistance of counsel in his 1999 case. We reverse.
Undesignated statutory references are to the Penal Code.
II. STATEMENT OF FACTS
A. The 1999 Case
In 1999, Cooper was charged with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and battery causing serious bodily injury (§ 243, subd. (d)). (S.F. Super. Ct., No. 174197.) As to both counts, it was alleged that Cooper personally inflicted great bodily injury on his victim (§ 12022.7).
At a March 3, 1999, preliminary hearing, Mahmoud Qanawi testified that Cooper attacked him on the morning of January 26, 1999. Qanawi was standing alone on the corner of Jones and Ellis at approximately 2:55 a.m. Cooper ran up to him, saying "Fuck you, son of a bitch," or "fuck you, bitch" and punched him in the face three times, hitting him in the nose and eye with a closed fist. Qanawi felt blood on his face and in his mouth.
Qanawi testified that, a few minutes before he saw Cooper coming toward him, two men came up behind him and somebody touched the wallet in his pocket. Qanawi turned to look and asked "why you touch my pocket." When he turned back, Cooper was approaching him. When Qanawi called out for help, a police officer was already coming toward him. Cooper was arrested and Qanawi was taken to the hospital where his treatment included eleven stitches to close a cut above his left eye. Photos of Qanawis injuries that were taken two days after the attack were admitted into evidence at the preliminary hearing.
At the conclusion of the preliminary hearing, the Honorable Perker L. Meeks, Jr. ordered that Cooper be held for trial on both the assault and battery charges. However, the court also made the following statement: "Counsel, I dont know if I am supposed to make a finding of this great bodily injury allegation. And in finding of great bodily injuries, I have reviewed the photographs, and I saw Mr. Qanawis face. It appears it is all healed. I dont know what you call great bodily-injury. There doesnt appear to be anything but a cut over the eye." This remark was followed by a brief discourse with both counsel during which the magistrate acknowledged that great bodily injury is a "relative term" but shared that, based on his own experience, he did not see this injury as a great bodily injury. At the conclusion of the hearing, the following exchange occurred:
"The Court: I dont see it. I mean, maybe I dont need to find it — if it was up to me, I wouldnt find it. But somebody may. Since I dont have to make a finding on that, I wont. My finding would be: there was injury. But — it wasnt great. It was — and I guess anybody who gets stitches, you think is great. But you know — looks to me like it was just a
"[Prosecutor]: So you are not making a finding at all, one way or another.
"The Court: As far as I am concerned, there wasnt any, but you dont need my decision on it. Anyway . . . I think that is something just for enhancement."
On May 3, 1999, Cooper pled guilty to the assault charge and admitted that, during the commission of this offense he personally inflicted great bodily injury upon the person of Mahmoud Qanawi. Both the prosecutor and defense counsel expressly stated that there was a factual basis for this plea and admission. In exchange for Coopers plea, the prosecutor dismissed the battery charge and agreed to a disposition of a suspended five-year prison sentence and three years probation.
Before it accepted Coopers plea, the trial court obtained confirmation directly from Cooper that he knew he would be pleading to a strike charge, that he understood the "consequences of having two strikes," and that another conviction could result in a sentence of 25 years to life. Defense counsel then stated that he had advised his client that he would be forfeiting several constitutional rights by making a plea and stated several of those rights for the record, including that Cooper had a constitutional right to be tried by a jury. The court then reviewed the terms of the agreed-upon disposition, confirmed with Cooper that he heard and agreed with all of the statements that had been made at the hearing, and then asked Cooper to expressly waive several rights on the record, including his constitutional right to a jury trial.
In accepting Coopers guilty plea, the trial court found that, "[c]oncerning the whole transaction, the court finds that this defendant was fully advised of his rights, that he understood his rights, that he freely and voluntarily waived his rights and that he entered into the guilty plea and admitted the G.B.I. allegation well knowing the consequences of the entire transaction."
B. The 2000 Case
In 2000, Cooper was charged with robbery (§ 212.5, subd. (c)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). (S.F. Super. Ct. No. 178189.) It was also alleged that Cooper had two prior strikes although one of the prior conviction allegations was subsequently dismissed pursuant to the prosecutors motion.
At trial, evidence was presented that, on January 18, 2000, at approximately 11:30 p.m., Charles Corral was leaving a market with snacks and a 12-pack of beer when Cooper approached him and said, "Give me respect, give me my respect." Then Cooper and another man grabbed Corral and dragged him into an alley where Cooper hit Corral twice in the face, threw him to the ground and kicked him twice. Cooper then grabbed Corrals beer and ran down the alley. Several days later, Cooper was spotted in front of the same store and was arrested on an unrelated charge. Corral went to the scene and identified Cooper as his assailant.
After a jury found Cooper guilty of both offenses, he waived his right to a jury trial on the 1999 prior and admitted its truth. However, prior to sentencing, Cooper moved to strike the 1999 prior strike. Cooper argued that the prior was invalid because, when he pled guilty to the assault with the great bodily injury enhancement in the 1999 case, he was not properly advised that he had a right to a jury trial on the enhancement. (See Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).) The parties stipulated that, were Cooper to testify, he would say that "he would not have admitted the GBI [great bodily injury] allegation had he been informed that the constitutional rights he had with regard to the natural charge, the [Penal Code section ] 245(a)(1), also applied to the GBI allegation as well." Notwithstanding this stipulation, the trial court denied the motion to strike, finding that Cooper did in fact know he was giving up his Boykin-Tahl rights when he entered the plea. Cooper was sentenced to 10 years in prison.
Cooper appealed the 2000 judgment alleging evidentiary error and also that the trial court erroneously denied his motion to strike his prior strike for the 1999 assault. On March 8, 2002, this court affirmed the judgment. In rejecting the claim of error with regard to the 1999 prior strike, we acknowledged that Boykin-Tahl protections applied to Coopers admission to the section 12022.7 enhancement, but concluded that the trial court could properly have concluded that Cooper failed to carry his burden of proving prejudice. We explained: "We see no reason to disturb the trial courts determination that Coopers stipulated testimony did not establish a constitutional violation. The court obviously found his statement not credible. The transcript of the hearing on Coopers 1999 plea contains a thorough description of his constitutional rights and explicit waivers of them. Although neither counsel nor the trial court explicitly stated that these rights and waivers applied to both his section 245, subdivision (a)(1) plea and his admission to the section 12022.7 enhancement, it is difficult to believe that, in the absence of such an explicit statement, Cooper might have been under the impression that he was not entitled to a jury trial on the great bodily injury enhancement. Certainly, there is nothing in the record to indicate he was told he had no such right. The trial court concluded, not unreasonably, that Cooper knew he had a right to a jury trial on both the section 245, subdivision (a)(1), charge and the great bodily injury allegation and that he would not have changed his plea if this had been stated more explicitly."
Although we affirmed the judgment in the 2000 case, we remanded for resentencing because the trial court had failed to impose a mandatory five-year consecutive term for Coopers serious felony prior conviction pursuant to section 667, subdivision (a)(1).
C. The Present Action
On July 25, 2005, Cooper filed a petition for writ of habeas corpus to vacate the judgment in his 1999 case and the sentence in his 2000 case. Cooper alleged he was entitled to relief on two grounds: (1) he was denied his constitutional right to the effective assistance of counsel in the 1999 case because his counsel failed to file a section 995 motion challenging the sufficiency of the evidence to support the great bodily injury allegation in that case, and (2) the failure to advise him of his Boykin-Tahl rights in the 1999 case resulted in a denial of his constitutional right to a jury trial on the great bodily injury enhancement.
In an order filed September 19, 2005, the trial court rejected Coopers argument that the failure to advise him of his Boykin-Tahl rights rendered his sentence in the 1999 case unconstitutional. However, the court found that Cooper had stated a prima facie case with respect to his ineffective assistance claim and issued an order to show cause.
At the conclusion of the evidentiary hearing, the Honorable Mary C. Morgan granted the writ petition, vacated Coopers conviction and related enhancement in the 1999 case and also vacated Coopers sentence in the 2000 robbery/assault case. The dispositive issue for the trial court was whether there was a reasonable probability that a section 995 motion to strike the enhancement would have been granted had it been filed in the 1999 case. In light of the evidence regarding Qanawis injury that was presented at the preliminary hearing in the 1999 case, and the "great discretion" that courts have in this area, the court found that there was a reasonable probability that a section 995 motion would have been granted as to the charged enhancement.
III. DISCUSSION
A. Delay In Filing Petition
The Peoples first contention is that the habeas corpus order must be reversed because Cooper failed to establish good cause for his significant delay in filing this petition. Because the People did not raise this substantially factual issue in the court below, we consider this claim of error waived. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896 ["it would be wholly inappropriate to reverse a superior courts judgment for error it did not commit and that was never called to its attention."]; People v. Tillman (2000) 22 Cal.4th 300, 302 [applying waiver doctrine in appeal by the People].)
B. Effect of Coopers Guilty Plea
The People also refine an argument they did briefly raise below, that Cooper cannot obtain reversal of a conviction that was the result of a guilty plea based on an alleged error that occurred prior to the entry of the plea.
"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." (Tollett v. Henderson (1973) 411 U.S. 258, 267; see also People v. Black (2004) 116 Cal.App.4th 103, 111-112. ) However, "[i]t is well settled that where ineffective assistance of counsel results in the defendants decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.]" (In re Alvernaz (1992) 2 Cal.4th 924, 934; In re Resendez (2001) 25 Cal.4th 230, 239.)
"[A] guilty plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt. [Citation.] It waives a trial and obviates the need for the prosecution to come forward with any evidence. [Citations.] A guilty plea thus concedes that the prosecution possesses legally admissible evidence sufficient to prove defendants guilt beyond a reasonable doubt." (People v. Turner (1985) 171 Cal.App.3d 116, 125.)
Therefore, "`a plea of guilty waives any right to raise questions regarding the evidence including its sufficiency or admissibility, and this is true whether or not the subsequent claim of evidentiary error is founded on constitutional violations." (People v. Kelly (2006) 40 Cal.4th 106, 122, fn. 4 quoting People v. Turner, supra, 171 Cal.App.3d 116, 125.) A guilty plea also waives "any irregularity in the proceedings that would not preclude a conviction, irregularities that could be cured, or that would not preclude subsequent proceedings to establish guilt . . . ." (People v. Egbert (1997) 59 Cal.App.4th 503, 509.) Subsequent to entering a plea, the defendant can raise "only those questions which go to the power of the state to try him despite his guilt." (People v. Turner, supra, 171 Cal.App.3d at p. 126.)
In the present case, Coopers ineffective assistance theory is somewhat novel but not improper; although the conduct he characterizes as ineffective assistance occurred prior to entry of his plea, Cooper contends that conduct directly resulted in his decision to plead to a strike because, had a section 995 motion been filed, it would have been granted, and there would have been no strike charge for him to plead guilty to. Although not clear from the trial courts truncated analysis, Coopers theory depends upon a showing that his counsel rendered ineffective assistance and, but for that ineffective assistance, Cooper would not have pled to the 1999 strike. Whether Cooper proved his theory is the question before us here.
C. The Ineffective Assistance Claim
1. Standard of Review
"To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.]" (In re Resendez, supra, 25 Cal.4th at p. 239.) Therefore, "in order successfully to challenge a guilty plea on [this] ground . . . a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsels incompetence, the defendant would not have pleaded guilty . . . ." (In re Alvernaz, supra, 2 Cal.4th at p. 934.)
"A claim of ineffective assistance of counsel presents a mixed question of fact and law which is generally subject to de novo review, especially where constitutional rights are implicated. [Citation.] As a reviewing court, we accept the superior courts credibility determinations and independently determine `whether [defendant] has established by a preponderance of substantial, credible evidence [citation] that his counsels performance was deficient and, if so, that [defendant] suffered prejudice. [Citations.]" (In re Alcox (2006) 137 Cal.App.4th 657, 664-665.)
2. Analysis
Cooper contends, as he did below, that because the magistrate who conducted the preliminary hearing in the 1999 case found that the evidence was insufficient to support the great bodily injury allegation, any reasonably competent defense attorney would have filed a section 995 motion to strike that allegation. The People maintain that the magistrates assessment of the evidence was not dispositive and that Coopers defense counsel did not render ineffective assistance simply because he did not file a section 995 motion.
We agree with the People that the magistrates comments, do not, standing alone, establish that a section 995 motion would have been granted. "[T]he preliminary hearing `is not a trial, and if the magistrate forms a personal opinion regarding the guilt or innocence of the accused, that opinion is of no legal significance whatever in view of the limited nature of the proceedings. [Citations.]" (People v. Wallace (2004) 33 Cal.4th 738, 749.) Furthermore, in this case, the magistrate expressly acknowledged that great bodily injury is a "relative term" and that somebody might find that Qanawi did suffer great bodily injury. Nevertheless, the magistrates comments did, at the minimum, highlight for both parties that the question whether there was sufficient evidence to sustain a finding of great bodily injury was debatable. Therefore, a section 995 motion might well have been meritorious.
Defense counsel has a duty to make a pre-trial motion "in circumstances where a diligent and conscientious advocate would do so. [Citations.] This does not mean counsel has to be absolutely convinced the motion, if made, would be granted nor that the motion, if granted, would result inexorably in the defendants acquittal. [Citations.] The motion need only be meritorious. [Citation.]" (People v. Gonzalez (1998) 64 Cal.App.4th 432, 437.) "There may be cases, however, where for tactical reasons counsel foregoes making a motion even though the motion has merit. [Citation.]" (Id. at p. 437, fn. 1.)
"`In reviewing an ineffective assistance of counsel claim, courts do not generally second-guess counsels tactical decisions [Citations.] `Judicial scrutiny of counsels performance must be highly deferential. It is all too tempting for a defendant to second guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citation.] [Citation.]" (In re Alcox, supra, 137 Cal.App.4th at p. 665.)
Applying these rules to the present case we find that, although a section 995 motion might well have been meritorious, Cooper has not overcome the presumption that his counsels conduct fell within the wide range of reasonable professional assistance. Indeed, the evidence before us supports the conclusion that Coopers 1999 defense counsel made a reasonable tactical decision to forgo filing a section 995 motion in order to secure the negotiated disposition which resulted in Coopers guilty plea.
Cooper entered his plea only two months after the preliminary hearing and, in exchange, received the prosecutors agreement to (1) dismiss the felony battery count and the great bodily injury allegation relating thereto, and (2) accept a disposition which not only imposed a lower term sentence for the assault but also suspended Coopers sentence and thereby kept him out of prison. If not for the plea agreement, Cooper risked incurring an additional felony conviction and an upper term sentence. Further, although we do not have before us a complete record of Coopers criminal history, the evidence we do have indicates there was virtually no possibility that Cooper could have avoided a prison sentence had he suffered jury convictions.
Cooper was on probation when he committed the offense resulting in the 1999 case and, when he entered his plea in that case, he acknowledged that he already had a prior strike. Furthermore, at the sentencing hearing in the 2000 case, the court noted that Cooper had numerous prior convictions in addition to the prior strike.
Cooper contends that, if his defense counsel had filed a section 995 motion first, "it is unquestionable that the case thus would have been placed in a better posture for settlement as far as Cooper is concerned." We disagree. Whether or not a formal motion was filed, the weakness in the evidence regarding the great bodily injury allegation was not a secret to anyone. We have little doubt that defense counsels hand was strengthened during the plea negotiations by the magistrates comments at the preliminary hearing. That strength is reflected in the favorable sentence counsel obtained for his client.
Furthermore, proceeding with a section 995 motion before entertaining a plea would not have been a risk-free option. Obviously, the section 995 motion could have been denied or, by the time the motion was resolved, the prosecutor may no longer have been willing to agree to a disposition which kept Cooper out of prison or to any negotiated disposition at all. In this regard, we note that Qanawis testimony under cross-examination at the preliminary hearing could have led the prosecutor to consider, perhaps for the first time, that Cooper assaulted Qanawi as part of an attempt to commit robbery with the men who touched Qanawis pocket. The prospect of an additional robbery charge could have led a reasonable defense attorney to seek a speedy disposition of the pending charges.
Cooper intimates that, because his 1999 assault conviction would not have been a strike if the great bodily injury allegation had been stricken, defense counsel could not have made a reasonable tactical decision to not file the section 995 motion. Although avoiding a strike conviction may have been a reasonable objective for defense counsel to have pursued, that does not mean that Coopers defense counsel acted unreasonably by pursing a different objective, i.e. to keep his client out of prison. The transcript of the plea hearing in the 1999 case is strong evidence that Coopers primary objective, at least at that time, was to stay out of prison. To that end, Cooper knowingly and voluntarily accepted a second strike. Had defense counsel insisted on litigating the section 995 motion before entertaining a plea, he jeopardized losing the plea option altogether.
Cooper argues that his plea in the 1999 case was not knowing and voluntary because defense counsel did not properly advise him of his right and ability to contest the great bodily injury allegation. To the extent Cooper is now suggesting that his guilty plea should be set aside because defense counsel failed to properly advise him regarding the option of filing a section 995 motion instead of entering a plea, that fundamentally distinct claim is not before us. Coopers petition seeks relief because of an allegedly deficient failure to file a section 995 motion, not because of a failure to advise Cooper about the motion option.
By contrast, Cooper has claimed that he would not have pleaded guilty in the 1999 case had he been advised of his Boykin-Tahl rights to a jury trial on the great bodily injury allegation. But that claim has been repeatedly rejected. Indeed, as noted in our factual summary, this court expressly affirmed a trial courts determination Cooper "knew he had a right to a jury trial on both the section 245, subdivision (a)(1), charge and the great bodily injury allegation and that he would not have changed his plea if this had been stated more explicitly" at the plea hearing.
When evaluating an ineffective assistance claim, the reviewing court "must in hindsight give great deference to counsels tactical decisions," (People v. Holt (1997) 15 Cal.4th 619, 703), "in order to avoid `second-guessing counsels tactics and chilling vigorous advocacy . . . ." (In re Fields (1990) 51 Cal.3d 1063, 1069-1070). Here, the evidence presented to us suggests that defense counsel made a reasonable tactical decision after the preliminary hearing in the 1999 case to forgo filing a section 995 motion to avoid stalling plea negotiations with the prosecutor. As a result of that decision, Cooper avoided a prison sentence. After re-offending, Cooper may now regret the deal he made in his 1999 case. However, at the time, not filing the section 995 motion was not an unreasonable tactic.
IV. DISPOSITION
The judgment of the superior court granting the petition for writ of habeas corpus is reversed.
We Concur:
KLINE, P.J.
LAMBDEN, J.