Opinion
A149299
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN CHASE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 222622)
Benjamin Chase was convicted of multiple crimes arising from a home invasion burglary and sentenced to a term of three years in prison. He contends his trial attorney provided constitutionally ineffective representation when she failed to communicate his wish to accept a pre-trial plea offer, allowed the offer to lapse, and failed to apprise him of a second plea offer. We agree Chase was denied effective assistance of counsel and remand the case for further proceedings consistent with In re Alvernaz (1992) 2 Cal.4th 924, 944 (Alvernaz.)
BACKGROUND
Ryan V. and Corey R. were awakened around 1:00 a.m. to discover Chase in the bedroom of their flat in San Francisco. Chase said he had a gun and repeatedly threatened to kill the couple as he proceeded through their flat cramming wallets, laptops, cellphones, clothing and other items into a suitcase and backpack. He left after making a final threat to return and kill the men if they called the police. Ryan and Corey waited five minutes, then called 911.
We will refer to the victims by their given names to protect their privacy. We intend no disrespect by this practice.
The victims described the burglar to police as a 30-year-old white male, 5'6" or 5'7", wearing dark clothing. The police used a tracking app to locate Ryan's cellphone near the Hotel Nikko downtown.
Around 1:28 a.m., Chase checked into the Parc 55 Hotel in downtown San Francisco using Ryan's credit card and identification. Ryan's credit card company alerted him about the charge and Ryan notified the police.
Officers arrived at the Parc 55 around 4:30 a.m. to find Chase passed out on the floor of his room amidst various items stolen from the flat, a stack of five-dollar bills and a crack pipe. Ryan and Corey were transported to the hotel, where they identified Chase as the perpetrator.
No useable fingerprints were retrieved, but an Arizona Fruit Punch bottle found in the flat revealed a mixture of DNA to which Chase was the major contributor. A small amount of DNA from a minor contributor was inconclusive.
Chase testified that he was homeless and a drug addict. He was hanging out with his acquaintance "Rip" the evening before his arrest. Rip sometimes brought Chase items to fence, and the two would smoke crack together. That day Chase bought oxycodone and Xanax pills from his dealer. Rip bought an Arizona Fruit Punch and Chase bought a Gatorade. Chase did not remember handling or drinking from Rip's fruit punch, but he may have.
Chase snorted some of the pills and Rip injected methamphetamine. Chase became very groggy, and his memory of what followed was hazy. He remembered Rip "almost dragging [him] down the street" and finally sitting him down on a curb and telling him to wait. His next memory was of Rip dragging him into the back seat of a cab and hearing the trunk slam. They got out of the cab on Taylor street near Turk because "[t]hat's where you can purchase crack all hours of the night." Chase noticed that Rip had "somehow acquired a suitcase and a couple of other things." The two bought crack and smoked it.
Rip gave Chase the suitcase, a backpack and a wallet, told him to get them a hotel room, and went off in search of methamphetamine. Chase walked to the Parc 55 and used a credit card and identification from the wallet to check into a room. As he snorted his two or three remaining pills and smoked the rest of the crack he went through the items in the suitcase because Rip had told him to see what he could get for them. His next memory was of being at the police station.
Chase was charged with residential burglary (count one), two counts of residential robbery (counts two and three), receiving stolen property (count four), acquiring and possessing access card information (count five), obtaining and using personal identifying information (count six) and two counts of making a terrorist threat (counts seven and eight). An on-bail enhancement was also alleged. The defense theory was that it was Rip, not Chase, who resembles him, who broke into the victims' flat and stole their belongings. The jury found Chase guilty on all counts except count four, as to which it did not reach a verdict.
Chase filed a new trial motion alleging the trial court erroneously excluded photographs of Rip as a discovery sanction and, alternatively, that the exclusion resulted from ineffective legal assistance by defense counsel. The court held a Marsden hearing to determine whether to appoint substitute counsel for a new trial motion based on Chase's ineffective assistance claim.
People v. Marsden (1970) 2 Cal.3d 118.
At the Marsden hearing, Chase requested that his attorney be relieved and new counsel appointed to represent him. Asked why he felt his attorney was inadequate, he explained: "There's several examples. One that sticks out early was an offer was made to me by the former District Attorney who was on the case initially, that they would give me two years at 50 percent if I agreed to one count of simple—of residential burglary. I wanted to take it. I immediately wanted to take it.
"[Defense counsel,] Ms. Tong told me to wait off. 'No. Hold on. Wait off.'
"I said, 'I want to take it right now, today.'
"She said, 'Well, just wait.'
"And then she became unavailable. She was waiting for fingerprint evidence. Then she became unavailable, as she was tangled up in a trial. Then [District Attorney] Mr. Nemetz became—"
After a brief interruption, Chase continued:
"She told me to wait off. She was waiting on evidence. I didn't recall exactly what it was at the time. She told me it was fingerprints.
"I wanted to take the deal now. I just wanted to get it over with. I just wanted the two years. You know, half of that was only a year. I already had in about six or seven months. By my count, that would only be five more months, and I'd be home and it would be over with.
"I at no time wanted to ever go to trial. That was from day one. The first conversation I had with Ms. Tong was, 'I do not want to take this to trial. I do not want to go to trial. I do not want to go to trial.' She kept putting me off, putting me off.
"Then Mr. Nemetz came on the case and said, 'I didn't make that offer' and refused to honor it." Chase's relationship with his attorney "ha[d] been sort of strained" since then.
Chase said he was afraid about his safety in jail if he were to identify Rip as the robber. "You know, at the end of the day, when everyone else goes home, I'm in jail. And things like that people get hurt very badly for. . . ." "My—my only hope with it even being out there was that it would be used in some sort of closed-door discussion between my attorney and the District Attorney to settle this case as quietly as possible, and it wouldn't reach all these other ears. You know, I mean, I just—once you say something and it's out, you just never know where it's gonna end up. You know what I mean?"
The court told Chase that defense counsel did not control the offer and wanted to make sure there was sufficient evidence to convict him. Chase responded: "[t]he thing is that at the time the District Attorney said this was a—that it was an open-ended offer and that they would—they would—they would let me think about it. They were offering it, and they were not giving me a time line to it. [¶] . . . [¶] But I told her, 'Who knows how long that's gonna last? And if—if there—say the fingerprints did come back and there was something there. I told her from the go I was at the scene; I just never went in the house. You know what I mean?"
Chase also said he was never informed of further plea negotiations after the initial offer. "[T]o my understanding, there was no attempt on Ms. Tong's behalf to negotiate anything other than to force me to go to trial. And from the day one I told her that was something I did not want to do.
"And I—I—and until we started here, I didn't hear of any other offers. I didn't hear of any other—anything else to resolve my case without there being a trial necessary. I mean, I—I can't imagine that at no time could she have gotten with the District Attorney and at least gotten some sort of offer on the table for me to consider. You know what I mean?
"It was just like, 'No, we're not doing anything besides we're going to trial.' "
Asked for her account, defense counsel confirmed that District Attorney Singh offered Chase two years at 50 percent credits. "I had told Mr. Chase that. He indicated he wanted to take it. . . .
"And while I—I understood he wanted to take it, in order for me to be effective assistance of counsel, because as a defense lawyer if a person—because it was a strike. I did not want to be in a situation where Mr. Chase took the strike offer disposition—and then obviously this happens—sometime in the future he were to return to me and say, 'Why did I take that strike when all the forensic evidence had not returned?"
. . .
"So what I indicated to Ms. Singh was I want to hear back about the fingerprint results first. . . . Now I felt as his—as an attorney, as a member of the bar, that I had done my due diligence in presenting all of the discovery that I had for him to evaluate whether it was a knowing, voluntary, and intelligent waiver with all the—the return of the forensic evidence.
"That did not make Mr. Chase happy, because he—my recollection at the time was he didn't care about waiting for the return of the forensic evidence, and he wanted to go forward with it, anyway; but I, as an attorney, have to protect myself, as well, in the event that in the future he were to return and make a claim of ineffective—make a claim of a strike plea that was not knowing and intelligent because he did not have all the information.
Defense counsel stated that Singh agreed to keep the offer open. "And then what happened, your Honor, was I was in trial in February of that year. I was in trial. During the trial for a few weeks Ms. Singh did e-mail me and say, 'Look. I'm about to get removed from this case. I know you're in trial, and I'm letting you know that we need to resolve it. If you want that offer, then you're gonna have to resolve it, because I don't know what will happen in the future.
"I was physically in trial with Judge Ross in Department 21. And I actually presented a whole memo to Mr. Nemetz and his management. They could care less. They could care less. I was physically unavailable.
"The day my verdict came in, I believe early March of last year, I left the country that night, and I was out of the office for three weeks.
"Mr. Chase had no apparent ability to accept this offer, because his counsel was physically unavailable because of trial and then being out of the country, for about at least six weeks. He was in San Bruno. No communication with me at all." Then, counsel explained, when she returned from her vacation District Attorney Nemetz had withdrawn the offer.
After confirming that Chase had never wanted to give her Rip's real name, defense counsel described a second plea offer, from District Attorney Nemetz. " '[T]he last offer that I recall being presented was some sort of like three years and eight months at 85 percent, willing to do a paper commitment. I think I countered with maybe a 50 percent three years and eight months. I think Mr. Nemetz wanted the 85 percent. That's where I think, was the sticking point, the credits. So
. . .
"And so when negotiations broke down and the last offer was three years and eight months at 85 percent, that would have required Mr. Chase to spend another year and a half in the County Jail. Then the option was to go to trial. That's not what he—he's never wanted to go to trial. This has been a choice of two evils.
"He did not—because he's maintained his innocence, three years and eight months seemed—especially with someone of his record and what have you, and because he knows that he's factually innocent, regardless of what the jury has found, he said—then we went to trial. So that's when we had to prepare."
The court denied the Marsden motion. It stated: "First of all, I have presided over this trial from the date it came to this Court for purposes of trial. And I've looked at all the procedures that both attorneys have started in the trial, the witnesses, the strategies that they have, and Ms. Tong's direct examination, cross-examination of all witnesses. I don't believe that she acted inappropriately, and I believe that she acted the best that she can. I think she acted in the way that a competent attorney should have acted and did act."
Discussion
Chase contends he was denied the effective assistance of counsel when his attorney failed to convey his wish to accept the initial plea bargain to the prosecutor before the offer lapsed or inform him of the subsequent plea offer from District Attorney Nemetz. We agree.
I. Legal Principles
The two-part Strickland v. Washington test applies to claims of ineffective assistance of counsel during the plea negotiation process. (Lafler v. Cooper (2012) 566 U.S. 156, 162-163 (Lafler); Hill v. Lockhart (1985) 474 U.S. 52, 58-59 (Hill); Alvernaz, supra, 2 Cal.4th at pp. 933-934.) To establish such a claim, a defendant must show (1) that defense counsel's performance fell below an objective standard of reasonableness under the prevailing norms of practice, and (2) a reasonable probability that, but for the ineffective performance, the result would have been more favorable to the defendant. (Hill, supra, 474 U.S. at p. 58-59; Alvernaz, supra, at pp. 936-937.)
Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-694.)
Claims of constitutionally deficient representation may arise where ineffective representation results in the defendant's rejection of an offered plea bargain, as well as where incompetent advice results in a decision to plead guilty. (Lafler, supra, 566 U.S. at pp. 164-165; Alvernaz, supra, at pp. 934-935.) This includes the situation where defense counsel allows a formal offer from the prosecution to expire without advising the defendant or allowing him or her to consider it. (Missouri v. Frye (2012) 566 U.S. 134, 145 (Frye).) However, "in reviewing such a claim [of ineffective assistance in the context of plea bargaining], a court should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain." (Alvernaz, supra, at p. 938.) Factors relevant to that determination include "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 amenable to negotiating a plea bargain. In this context, a defendant's self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." (Ibid.) The defendant must also demonstrate a reasonable probability that, but for counsel's inadequate performance, the court would have accepted the plea bargain and the conviction, sentence or both under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed. (Lafler, supra, 566 U.S. at p. 164.)
II. Analysis
It is clear to us that defense counsel rendered deficient legal representation when she failed to communicate Chase's wish to accept the initial plea offer before it lapsed. A defense attorney has an obligation to fully advise his or her client of the terms and desirability of plea offers extended by the prosecutor. The client, so informed, has " 'the ultimate authority' to determine 'whether to plead guilty.' " (Florida v. Nixon (2004) 543 U.S. 175, 187 (Nixon); Alvernaz, supra, 2 Cal.4th at p. 937; see ABA Standards for Criminal Justice, Responsibilities of Defense Counsel, std. 14-3.2; Control and Direction of the Case, std. 4-5.2 (3d ed. 1999).) It necessarily follows that counsel may no more decline to convey a client's decision to accept a plea to the prosecutor than decline to convey the offer to the defendant. Under any other view, the defendant's right to decide to accept a plea offer would be meaningless. (See, e.g., People v. Mujica (Ill.App.Ct. 2016) 55 N.E.3d 59, 63; Morris v. State (Fla.Dist.Ct.App. 2010) 50 So.3d 696, 697; Flores v. State (Tex.App. 1990) 784 S.W.2d 579, 581; Gomez-Ortiz v. U.S. (D.P.R. 2015) 130 F.Supp.3d 523, 526; Green v. Attorney General (2016) 193 F.Supp.3d 1274, 1282.)
Here, the transcript of the Marsden hearing establishes that Chase adamantly wanted to accept the offer and that he made that desire known to his attorney. Defense counsel admitted she understood that Chase wanted to take the offer, did not want to wait for the forensic evidence, and "never wanted to go to trial." Assuming arguendo that (as the People suggest) we can infer from this record that Chase nonetheless accepted his attorney's advice to delay his decision pending the forensic evidence while the prosecutor held the plea offer open, it became a different matter once the prosecutor told defense counsel that she was about to be removed from the case and could not guarantee her successor would hold the offer open. At that point, if no sooner, defense counsel had an obligation to convey Chase's desire to accept the offer to the prosecutor. When defense counsel allowed the offer to expire in contravention of her client's express wishes, she failed to render the effective assistance required by the Constitution. (See Frye, supra, 566 U.S. at p. 145; Nixon, supra, 543 U.S. at p. 187.) It need hardly be said, and the People do not argue on appeal, that counsel's trial on another matter or leaving for a vacation did not excuse her obligation.
We are also satisfied that Chase has demonstrated the prejudice required for an ineffective assistance claim relating to plea negotiations. "To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel" and that "the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it." (Frye, supra 566 U.S. at p. 147.) In light of the record, the People argue only that Chase has not demonstrated a reasonable probability the court would have accepted the two-year plea. We disagree. The best indicator of whether the court would have accepted the plea is not the charged but then-unproven offenses, but rather the court's sentencing decision to impose the three-year low term on count two and concurrent low terms on the remaining six counts (stayed pursuant to Penal Code, section 654), based on mitigating factors including Chase's minimal and nonviolent criminal history. In light of that sentencing choice, it is reasonably probable the court would have approved the two-year plea agreement.
The People assert the court could not have approved a two-year sentence at 50 percent credit because residential burglary is a violent felony, which has a 15 percent credit limitation. (Pen. Code, §§ 2933.1, 667.5, subd. (c)(21).) But the charges against Chase included other felonies and wobblers not subject to the 15 percent limitation, so we are unpersuaded that the plea offer would necessarily have resulted in an "unlawful bargain." The People also rely on Penal Code section 1192.7, which in relevant part proscribes plea bargaining where a serious felony is charged "unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." (Pen. Code, § 1192.7, subd (a)(2).) Here the prosecution plainly did not believe section 1192.7 was a bar to plea bargaining when it made two plea offers before trial, perhaps because it believed, as the court's sentencing decision made evident, early resolution of the case by the plea "would not result in a substantial change in sentence." Chase has made a sufficient showing of prejudice to establish a claim of ineffective assistance of counsel.
The question, then, is the proper disposition of this appeal. The answer is provided by Alvernaz, supra, 2 Cal.4th at p. 944. "[T]he appropriate remedy for ineffective assistance of counsel that has resulted in a defendant's decision to reject an offered plea bargain (and to proceed to trial) is as follows: After the granting of relief by . . . an appellate court, the district attorney shall submit the previously offered plea bargain to the trial court for its approval, unless the district attorney within 30 days elects to retry the defendant and resume the plea negotiation process. If the plea bargain is submitted to and approved by the trial court, the judgment shall be modified consistent with the terms of the plea bargain."
In light of this resolution, we will not address Chase's further contentions that (1) his attorney rendered ineffective assistance of counsel by failing to inform him of the prosecutor's second plea offer, and (2) the court erred when it declined to appoint substitute counsel for a new trial motion, excluded photographs of "Rip" as a discovery sanction, and instructed the jury with CALCRIM 361 on a defendant's failure to explain or deny evidence. We agree with both parties, however, that for accuracy the abstract of judgment should be conformed to the court's oral pronouncement of judgment to reflect the correct low term for each count. Specifically, the abstract should be modified to reflect two years on count 1, three years on count three, and the low term of 16 months on counts 5, 6, 7 and 8.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings as described in Alvernaz, supra, 2 Cal.4th at page 944.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
/s/_________
Jenkins, J.