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People v. Goddard

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Apr 12, 2018
A150479 (Cal. Ct. App. Apr. 12, 2018)

Opinion

A150479 A150481 A152924

04-12-2018

THE PEOPLE, Plaintiff and Respondent, v. GARY E. GODDARD, Defendant and Appellant. In re GARY E. GODDARD, on Habeas Corpus.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. Nos. CR1504545A, CR1405815)

I.

INTRODUCTION

This appeal represents three consolidated cases: A150481 from superior court case No. CR1405815, appellant's April 2015 plea; A150479 from superior court case No. CR1504545A, appellant's July 2016 plea; and A152924, the habeas petition.

Appellant Gary E. Goddard appeals from his guilty plea for providing a place for the production and distribution of a controlled substance (Health & Saf. Code, § 11366.5, subd. (a)). Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

All subsequent references are to the Health and Safety Code unless otherwise identified.

Appellant has simultaneously filed a petition for writ of habeas corpus arguing his counsel provided ineffective assistance in advising him about the consequences of his guilty plea. We summarily deny the petition.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2014, a citizen reported a large indoor marijuana grow at Goddard's home, two connecting properties in Arcata, California. Police obtained search warrants for the properties and found 609 live flowering marijuana plants, 312 vegetative marijuana plants, 17 pounds of drying marijuana, 36 grow lights, 6 guns, and $24,815.

The factual summary is taken from the probation reports.

In April 2015, appellant pleaded guilty to making a place available for the manufacture, storage, or distribution of a controlled substance in violation of section 11366.5, subdivision (a). The court suspended appellant's sentence and placed him on two years' probation.

In September 2015, agents of the Humboldt County Drug Task Force conducted a probation compliance check at Goddard's home. Officers found 259 live marijuana plants, one and a half pounds of untrimmed cannabis, one pound of cannabis shake, one pound of cannabis bud, and 20 grams of concentrated cannabis/butane honey oil.

Appellant was charged with manufacturing a controlled substance in violation of section 11379.6, subdivision (a); making a place available for the manufacture, storage, or distribution of a controlled substance in violation of section 11366.5, subdivision (a); and possession of marijuana for sale in violation of section 11359. On July 21, 2016, pursuant to a plea agreement, appellant pleaded guilty to making a place available for the manufacture, storage, or distribution of a controlled substance in violation of section 11366.5, subdivision (a), and a probation violation. The other counts were dismissed. At the hearing, Goddard stated that he had discussed the case and any possible defenses with his counsel and he had no questions about the plea form he had completed. The trial court found that Goddard understood the nature of the crimes and the consequences of pleading guilty.

The court sentenced appellant to three years' mandatory supervision and suspended execution of the sentence. On appellant's prior (April 2015) conviction, the court revoked probation and sentenced appellant to a consecutive eight months but suspended execution of the sentence.

In each case, the court issued a certificate of probable cause.

III.

DISCUSSION

A. No Issues Under Wende

Neither appellant nor appellant's counsel has identified any issue for our review on appeal. Upon our own independent review of the record, we agree no actual issue exists. (Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744.) Appellant was advised of his constitutional rights prior to the entry of his plea, as well as the consequences of his plea. The court found the plea was free and voluntary, and that there was a factual basis for it. No error appears in the entry of his original plea, in the initial sentencing, nor in his subsequent probation violation hearing, second plea, and sentencing hearing. Appellant was represented by counsel at all times. There are no meritorious issues to be argued on direct appeal.

B. The Habeas Petition

In his habeas petition, Goddard argues his trial counsel was ineffective for failing to anticipate changes in the law created by the passage of Proposition 64.

Goddard submits his own declaration and a declaration from his trial counsel. His trial counsel states she was advised the standard plea deal for a case such as this was for the district attorney's office to dismiss the felony charges for manufacturing a controlled substance under section 11379.6, subdivision (a) and possession for sale under section 11359 for a plea to a lesser offense of providing a place for the manufacture and distribution of a controlled substance under section 11366.5, subdivision (a). Prior to Goddard's plea, trial counsel discussed with him that there was an effort to place an initiative on the ballot, Proposition 64, that would reduce some marijuana-related felonies to misdemeanors retroactively. Trial counsel was unaware that Proposition 64, if passed, would not reduce section 11366.5, subdivision (a) to a misdemeanor. She did not discuss the fact that if Proposition 64 passed, section 11359 could be reduced to a misdemeanor.

In his declaration, Goddard states that his trial counsel advised him of the standard plea to a reduced charge under section 11366.5, subdivision (a). Trial counsel advised him she believed accepting the plea offer was in his best interest. He stated he knew there was an effort to place an initiative on the ballot to reduce many marijuana-related offenses to misdemeanors retroactively. He then states: "If I had known the proposed initiative, if it passed, would reduce section 11359 to a misdemeanor, but would leave section 11366.5 subd. (a), as an alternate felony/misdemeanor, I would not have a pleaded guilty to [11366.5], subd. (a)." He states that he would have sought to delay his plea until after the initiative passed or he would have accepted the plea offer to the greater offense of section 11359.

"When presented with a petition for a writ of habeas corpus, a court must first determine whether the petition states a prima facie case for relief—that is, whether it states facts that, if true, entitle the petitioner to relief—and also whether the stated claims are for any reason procedurally barred. [Citation.]" (People v. Romero (1994) 8 Cal.4th 728, 737.)

To establish ineffective assistance of counsel under either federal or state law, a defendant must show that counsel's representation fell below an objective standard of reasonableness 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. (People v. Waidla (2002) 22 Cal.4th 690, 718.)

"The two-part Strickland [v. Washington (1984) 466 U.S. 668 (Strickland)] test applies to challenges to guilty pleas based on ineffective assistance of counsel. (Hill v. Lockhart (1985) 474 U.S. 52, 58 (Hill).) 'Where, as here, a defendant is represented by counsel during the plea process and enters his [or her] plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." ' (Id. at p. 56.) 'The second, or "prejudice," requirement, on the other hand, 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 [or she] would not have pleaded guilty and would have insisted on going to trial.' (Id. at p. 59, fn. omitted.)" (People v. Breslin (2012) 205 Cal.App.4th 1409, 1418-1419.)

Goddard alleges that his trial counsel's performance fell below an objective standard of reasonableness "by failing to anticipate and research the changes that Proposition 64 would bring if passed."

In the context of a change in the law created by the courts, our Supreme Court has stated: "defense counsel could not reasonably have been expected to anticipate [a] change in the law." (People v. Harris (2013) 57 Cal.4th 804, 840.) While a skilled attorney may craft an argument anticipating a change in the law "it was not objectively unreasonable within the meaning of Strickland for [] trial counsel to fail to predict" a change in the law. (Larrea v. Bennett (2d Cir. 2004) 368 F.3d 179, 184.)

A failure to anticipate changes in the law is not generally considered ineffective assistance of counsel. (See Green v. Johnson (5th Cir. 1997) 116 F.3d 1115, 1125 ["there is no general duty on the part of defense counsel to anticipate changes in the law"]; Alcorn v. Smith (6th Cir. 1986) 781 F.2d 58, 62 ["nonegregious errors such as failure to perceive or anticipate a change in the law . . . generally cannot be considered ineffective assistance of counsel"].)

At the time of Goddard's change of plea hearing, Proposition 64 was not the law. Proposition 64 was not approved by voters until November 8, 2016. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 64, p. 178 et seq.) Under Proposition 64, the possession and sale of marijuana under section 11359 was changed from a felony to a misdemeanor effective November 9, 2016. (Prop. 64, § 8.7; Health & Saf. Code, § 11361.8.)

Goddard cites to Hinton v. Alabama (2014) 134 S.Ct. 1081, 1089 which stated: "An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. [Citations.]" Hinton involved an attorney who had the mistaken belief he could not seek additional funds to hire a qualified expert to testify at trial. (Id. at p. 1088.) The attorney failed to make "even the cursory investigation of the state statute" at issue. (Id. at p. 1089.)

This case is distinguishable because here trial counsel did advise Goddard about Proposition 64 which was only just being placed on the ballot. Trial counsel was not ignorant of the law and she had performed research to learn about potential changes in the law (that may or may not come to pass). "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Strickland, supra, 466 U.S. at p. 690.) At the time of Goddard's guilty plea, the offer from the district attorney's office was a reasonable recommendation under existing law. The fact that a ballot measure might be enacted a few months later does not make counsel's advice unreasonable.

When a defendant seeks to withdraw a guilty plea on the ground that he suffered ineffective assistance of counsel, he "must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, [he] would not have pleaded guilty and would have insisted on proceeding to trial. [Citation.]" (In re Alvernaz (1992) 2 Cal.4th 924, 934.)

Even if counsel's performance was ineffective, Goddard cannot establish that if counsel had advised him that section 11366.5 would remain a wobbler felony/misdemeanor and section 11359 would be reduced to a misdemeanor, he would not have plead guilty. Goddard's self-serving statement that he would have sought to delay his plea or to plead to the greater charge does not establish prejudice. "[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." (In re Alvernaz, supra, 2 Cal.4th at p. 938, italics omitted.)

Furthermore, Goddard cannot demonstrate that if he pleaded guilty to section 11359, rather than section 11366.5, he would have received a lesser sentence. At least one Court of Appeal has held that Proposition 64 may not reduce penalties for all offenders. "We therefore conclude that a person sentenced prior to the enactment of Proposition 64 for violating Health and Safety Code section 11359 whose judgment is not yet final is not automatically entitled to the reduction of punishment provided by the amendment to that statute." (People v. Rascon (2017) 10 Cal.App.5th 388, 395.) Goddard's plea in July 2016 followed an earlier plea to the same crime as well as a probation violation. Under these circumstances, we cannot conclude the trial court would have imposed a lesser sentence.

IV.

DISPOSITION

The judgment is affirmed and the petition for a writ of habeas corpus is summarily denied.

/s/_________

SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.

Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------


Summaries of

People v. Goddard

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Apr 12, 2018
A150479 (Cal. Ct. App. Apr. 12, 2018)
Case details for

People v. Goddard

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GARY E. GODDARD, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Apr 12, 2018

Citations

A150479 (Cal. Ct. App. Apr. 12, 2018)