Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Super. Ct. No. F05907680-3
Roger T. Nuttall, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorney General, for Respondent.
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
OPINION
Pursuant to a plea agreement in Fresno County Superior Court case No. F05907680-3, petitioner Nicholas Dueck piled no contest to grand theft of a firearm (Pen. Code, § 487, subd. (d)). The court placed Dueck on three years’ probation, one of the conditions of which was that he serve 136 days in county jail. Thereafter, Dueck moved to withdraw his plea and vacate his sentence. The court denied the plea/judgment motion.
Except as otherwise indicated, all statutory references are to the Penal Code.
We refer to this motion as the plea/judgment motion.
Dueck appealed. This court, on its own motion, ordered the appeal to also be deemed a petition for writ of habeas corpus, and granted the People leave to file an informal response. The People filed an informal response, and Dueck filed a responsive pleading (informal reply). Thereafter, this court vacated its order deeming the appeal to also be a petition for writ of habeas corpus; affirmed the judgment on appeal; and ordered that certain documents filed by Dueck in the appeal, including his opening brief, be deemed, collectively, to be a petition for writ of habeas corpus. Further, this court issued an order that the People show cause why the relief prayed for in the instant petition for writ of habeas corpus, i.e., reversal of the judgment based on ineffective assistance of counsel, should not be granted.
We take judicial notice of the records in that appeal, People v. Dueck, case No. F051430. (Evid. Code, § 452, subd. (d).)
This court also granted the People the option of either filing a formal written return or consenting to have their informal response, and other pleadings filed in the appeal, deemed to be their formal written response. The People have chosen the latter option, and have waived oral argument. Dueck has agreed that his informal reply and other pleadings filed in the appeal be deemed his formal traverse, and has also waived oral argument.
As we discuss below, we will conclude Dueck was denied his right to the effective assistance of counsel, and direct that a writ of habeas corpus issue.
ADDITIONAL FACTUAL AND PROCEDURAL BACKGROUND
In October 2005, Dueck was charged with three offenses: the instant offense, second degree burglary (§§ 459, 460, subd. (b)), and unlicensed sale of firearms (§ 12070, subd. (a)). In December 2005, pursuant to a plea agreement, he piled no contest to the instant offense, and the court dismissed the remaining charges. The plea agreement also included a provision for “no initial state prison,” and the “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM” (plea advisement and waiver form) executed by Dueck on December 7, 2005, indicates, under the heading “Other possible consequences of this plea may include,” the following: “[Section] 1203.4 APPLICATION UPON SUCCESSFUL COMPLETION OF FELONY PROBATION.” The plea advisement and waiver form makes no reference to any possibility of reducing the instant offense to a misdemeanor.
Section 1203.4 provides that a defendant who has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of probation, is entitled as a matter of right to have the plea or verdict changed to not guilty; to have the accusations dismissed; and, subject to several important exceptions, to “be released from all penalties and disabilities resulting from the offense of which he or she has been convicted....” (§ 1203.4, subd. (a).) The exceptions include the following: the conviction may be pled and proved as a prior conviction in any subsequent prosecution, and the probationer is “not relieve[d] ... of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” (Ibid.)
In February 2006, the court granted Dueck probation.
In March 2006, Dueck filed a notice of motion to withdraw his plea, and in August 2006 he filed the plea/judgment motion, which “incorporate[d]” his March 2006 motion.
In support of the plea/judgment motion, Dueck filed a declaration executed by attorney Roger T. Nuttall, in which Mr. Nuttall averred as follows: he was a member of the law firm representing Dueck; in representing Dueck, he erroneously advised him that the instant offense “was a ‘hybrid’ offense, enabling him to seek the benefits of Penal Code section 17(b), whereby a charge may be declared a misdemeanor upon successful completion of probation”; and Dueck told Mr. Nuttall he would plead guilty [sic] to the charge of grand theft of a firearm “only ... if [the charge] could be reduced to a misdemeanor pursuant to Penal code section 17(b).”
Also in support of the plea/judgment motion, Dueck filed a declaration in which he himself averred that Mr. Nuttall represented to him that the instant offense was a “‘hybrid’” offense, with the potential for reduction to a misdemeanor upon successful completion of probation, pursuant to Penal Code section 17(b),” and that he (Dueck) would not have entered his plea “[h]ad [he] been correctly advised by counsel….”
DISCUSSION
Certain criminal offenses, commonly called “wobbler's” or “hybrid” offenses, are punishable either as felonies or misdemeanors, in the discretion of the court. When a defendant is placed on probation for such an offense, the court may, on application made at the time of granting of probation or at some point “thereafter,” declare the offense to be a misdemeanor. (§ 17, subd. (b)(3).) As Dueck notes, the instant offense, grand theft of a firearm, is not a hybrid offense.
Dueck argues that his plea was the product of constitutionally ineffective assistance of counsel because his counsel incorrectly advised him the instant offense was a hybrid and Dueck relied on that advice in pleading no contest.
“The pleading—and plea bargaining—stage of a criminal proceeding is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.” (In re Alverta (1992) 2 Cal.4th 924, 933-934.)
“To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant.” (In re Resend (2001) 25 Cal.4th 230, 239.) “The ... ‘prejudice[]’ requirement, [of a claim of ineffective assistance of counsel in the context of a defendant’s plea of guilty,] ... focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985) 474 U.S. 52, 59.) A defendant’s assertion that “he would not have piled guilty if given competent advice ‘must be corroborated independently by objective evidence.’ [Citations.]” (In re Resend, supra, 25 Cal.4th at p. 253.)
As to the first prong of the required showing, deficient performance, there is no dispute that (1) defense counsel represented to Dueck that the instant offense was a hybrid offense that Dueck could seek to have reduced to a misdemeanor under section 17, and (2) that representation was flatly wrong. We so find. (In re Schoenberg (1970) 2 Cal.3d 870, 876, fn. 4 [habeas corpus proceeding is one “in which issues of fact are to be framed and decided”]; In re Alverta, supra, 2 Cal.4th at p. 945 [petitioner has the burden of establishing deficient performance and prejudice “by a preponderance of substantial, credible evidence”].) Further, we conclude that defense counsel, by affirmatively mis advising Dueck, provided representation that fell short of the level of competence demanded of attorneys in criminal cases. (Cf. In re Resend, supra, 25 Cal.4th at p. 251 [“‘the clear consensus is that an affirmative misstatement regarding deportation [as the possible consequence of a conviction] may constitute ineffective assistance’”].) We turn now to the question of prejudice.
The People argue that Dueck has not established he would have chosen to go to trial rather than enter a plea had he been correctly advised because (1) the plea agreement was a favorable one to Dueck, eliminating the possibility of a multi-year prison term, and (2) the reference in the plea advisement and waiver form to section 1203.4 “suggests that, in accepting the plea bargain, [Dueck] was focused on being able to avail himself of section 1203.4, which he can still do, rather than section 17, subdivision (b).”
See footnote 4.
We disagree. As indicated above, Deck's claim that he would not have piled no contest had he been correctly advised is corroborated by attorney Rebuttal's averment that Dueck, before entering his plea, stated that he would plead no contest only if he could later move to reduce the offense to a misdemeanor. We find that the foregoing constitutes substantial, credible evidence that Dueck was prejudiced by his counsel’s deficient performance.
DISPOSITION
Let a writ of habeas corpus issue directing as follows: the judgment in Fresno County Superior Court case No. F05907680-3 is reversed; the plea agreement is set aside; and all charges, i.e., the charge of the instant offense and all charges dismissed pursuant to the plea agreement, are reinstated.