Opinion
D073507
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. HARRY JASON JACKSON, Defendant and Appellant.
Elisabeth A. Bowman for Defendant and Appellant. Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF37149) APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Elisabeth A. Bowman for Defendant and Appellant. Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
On the date set for trial, Defendant Harry Jason Jackson was given a choice. He had been charged with felony animal abuse, which can carry a sentence of three years imprisonment and an automatic lifetime ban on firearms possession. In exchange for pleading guilty, the court offered to reduce the conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b). Apart from promising to reduce the conviction to a misdemeanor, the court made no other guarantees. Jackson took the deal, pled guilty, and was later sentenced to 10 days in county jail, a fine, and three years of formal probation.
All statutory references are to the Penal Code unless otherwise indicated.
Shortly thereafter, Jackson was unable to renew his license to carry a concealed weapon (CCW), which he claims he needed for work, so he moved to withdraw his plea. According to Jackson, his trial counsel misadvised him in several respects during the plea negotiations, including telling him he would not face any consequences relating to firearms possession as a result of his plea. The court denied the motion. On appeal, Jackson alleges ineffective assistance of counsel under the Sixth Amendment and on that basis seeks reversal of the trial court's denial of his motion to withdraw the plea.
As we discuss below, the assistance provided by Jackson's trial counsel may have been deficient. His claim, however, fails for lack of prejudice. He argues that if he had known that the plea might affect his CCW application, he would not have pled guilty and would have instead gone to trial. But given the record before us, there is no reasonable probability he would have done so. Because of a felony conviction's automatic ban on firearms possession and the weight of the evidence presented at the preliminary hearing, Jackson's argument consumes itself. Even if firearms possession had been, as he claims, his principal concern in evaluating the plea offer, we conclude there is no reasonable probability he would have rejected the plea offer. Given the considerable eyewitness and expert testimony adduced at the preliminary hearing, no reasonable person would have risked an automatic and permanent ban on firearm possession when the alternative included shorter-term, nonautomatic consequences.
We therefore reject Jackson's claim of ineffective assistance of counsel and find the court did not err in denying Jackson's motion to withdraw plea. Accordingly, we affirm the court's order and, in a separate order, deny the petition for a writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Alleged Offense
Jackson owned a Mustang horse. Jackson's neighbor first noticed that the horse appeared emaciated and did not have access to food. She also noted that the water in his trough was green with algae and that there were no horse droppings in the pen. She contacted a friend and sent him a photo and video of the horse. The neighbor's friend had been working with horses every day for several decades, and he was immediately alarmed at the horse's apparent malnourishment. He had never seen a horse in such poor condition. He advised Jackson's neighbor to slowly feed the horse every few hours and provide clean water, which she and her husband did. He also examined the horse in person.
In telephone conversations with the neighbor and her husband, Jackson said that he had seen the horse three or four days earlier and that he had been angry about its condition. But he had not fed it, and he did not know if the horse had been fed in the past month. He also claimed that he had hired someone to feed the horse and that they had had a dispute over pay.
After law enforcement was notified, Robert E. Wishner, a local veterinarian, examined the horse with animal control officers present. At that point, Jackson told Wishner that he had been feeding the horse regularly and did not know why it was so thin. Wishner did not find any underlying medical cause for the horse's condition. Joe Rosenberg, an equine veterinarian, also reviewed Wishner's reports, which included photos and witness statements, and concluded that the condition was not caused by a medical condition but was instead the result of owner neglect. B. Preliminary Proceedings
Jackson was charged by felony complaint with one count of violating section 597, subdivision (b). At the preliminary hearing, with Jackson represented by counsel, Jackson's neighbor and three others testified, including Wishner and Justin Bostic, an investigator for the Imperial County Sheriff's office. Additionally, several photos of the horse and its lot were identified by the witnesses and admitted into evidence. Judge William D. Lehman was "satisfied the defendant should be held to answer on a felony charge" and denied Jackson's motion to reduce the offense to a misdemeanor. Later that month, the charge was refiled by information, at which point Jackson pleaded not guilty. New counsel then substituted in for Jackson. C. Jackson Accepts a Plea Deal.
On the date set for trial, Jackson appeared again before Judge Lehman, who indicated he was prepared to offer Jackson a plea deal, and "sentence [him] to the terms of [section 17, subdivision (b)]." The court then outlined the ramifications of his plea. In short, it would reduce the offense to a misdemeanor in exchange for Jackson's pleading guilty. The court explained that "one thing that hasn't been decided and will be the subject of argument at the time of sentencing would be the terms and conditions of probation." The court also made clear that Jackson "could be ordered to serve . . . up to a year in the county jail, but the Court hasn't made a decision about what kind of consequences [he] would face . . . ." Jackson accepted the offer, and the parties stipulated that the preliminary hearing transcript provided a factual basis for the plea. The court found that Jackson understood his constitutional rights and voluntarily and intelligently waived them; that he made his plea freely and voluntarily; that he understood the nature of the charge and the consequences of the plea; and that there was a factual or legal basis for the plea. D. Sentencing
At the sentencing hearing in August 2017, defense counsel challenged several proposed probation conditions, including one prohibiting Jackson from possessing firearms, which "would occur in a felony case but not in a misdemeanor case," and another prohibiting him from owning or residing with pets. Counsel noted that if the court imposed the firearms prohibition condition, "that would have drastic effects on Mr. Jackson because he has—it's his job basically to have the firearms and/or deadly weapons in security." Counsel also objected to a probation condition requiring that he not possess or reside with any pets, including his cat, and stated that Jackson had sold the horse.
The prosecutor noted that the probation condition prohibiting pet ownership is mandatory is under section 597.9 for a misdemeanor conviction but that he may petition to have that reduced. She also stated that despite Jackson's representation that he sold the horse, it was still residing in the same place at his mother's residence, which raised questions about the purported sale.
In sentencing, the court noted that the evidence presented at the preliminary hearing plainly showed that Jackson's horse "had no food . . . [and] was emaciated; in effect, starving to death," and that Jackson's shifting explanation for his involvement "rings hollow." The court declared the offense to be a misdemeanor and suspended imposition of the sentence. It noted that it "still has the power to sentence the defendant to up to a year in the county jail. There was absolutely no agreement regarding whether he would face incarceration." Jackson was sentenced to ten days imprisonment in the county jail and placed on three years of formal probation subject to several terms and conditions, none of which related to possession of firearms.
When the court asked Jackson if he accepted the conditions of probation, he initially answered, "Absolutely not." The court explained if that Jackson did not accept the conditions, it would deny probation and consider imposing the maximum sentence, remarking that it "made clear when you entered your plea that there weren't any promises being made about the punishment you may receive." After a brief recess to allow Jackson to consult counsel, the court clarified that he was "inclined to say that if you refuse probation, that you're going to do 90 days in the county jail."
Defense counsel responded by requesting to withdraw the plea and offering that "[i]f the Court is denying that, Mr. Jackson would accept the conditions of probation." Jackson himself explained to the court that "when this plea agreement was proposed to me, there was—the reason I signed the plea agreement was so that we wouldn't go through the likely trial and expense and put myself at risk of jail time and, thus, adversely affecting my business." He further commented that "[a]ny kind of jail time destroys my business . . . and that's the reason I took the plea deal." In response, the court offered to read what had been said at the time of the plea regarding no promises as to the amount of custody time, which Jackson's counsel confirmed. At that point, Jackson decided to accept the conditions of probation. E. Jackson's Motion to Withdraw His Plea
In December 2017, Jackson—through different counsel by limited representation—filed a motion to withdraw his plea, and in January 2018 Judge Plourd conducted an evidentiary hearing. Jackson alleged misadvice, arguing that he "was assured by his attorney that that he would not serve any jail time as a result of his plea, even though a jail sentence was technically possible." He further claimed that the attorney "misadvised that his guilty plea would not affect his CCW," and that he would not have to surrender his horse, Raider, or his cat, also named Raider.
Jackson testified on his own behalf regarding his CCW and the effect of his guilty plea on his reissue application. He stated that before the hearing in July 2017, his lawyer advised him that entering the guilty plea "would have no effect on [his] CCW." Jackson brought up the subject of the CCW himself because he was specifically seeking assurance about it. His CCW permit was valid for two years, and he had previously applied for a CCW renewal 11 times. He said if he had known that his CCW application could be delayed or denied as a result of the plea, he would not have pled guilty and would have instead gone to trial. Likewise, if Jackson had known that he would have to surrender his cat as a result of the plea, he would not have pleaded guilty and would have gone to trial.
Jackson also discussed the consequences of the guilty plea on his work. At the time, he operated a private security firm that provided secure transportation services to two clients in the gemstone and marijuana industries. Jackson explained that while he expected the loss of his CCW to have a significant impact on his work, he had not yet lost any money or specific contracts as a result of his failure to obtain a CCW.
Jackson's defense counsel also testified. Regarding the CCW, he recalled Jackson being "concerned if he was going to lose his ability to own or carry a weapon, that he wasn't going to enter the plea." Counsel admittedly told Jackson "a misdemeanor conviction would have no effect on his ability to carry a concealed weapon. A misdemeanor conviction does not have any bearing on your ability to own a weapon." Otherwise, he did not recall providing any advice regarding consequences the plea might have on his CCW. Beyond the firearms issue, the lawyer also advised Jackson that it was unlikely his sentence would include jail time (which he did not recall being a concern for Jackson), and that he would not lose his horse as a result of the plea (which counsel knew to be a concern).
Both parties stipulated that if called, a witness from the Sheriff's office would testify that at the time of the hearing, Jackson's CCW renewal application remained pending and there had been no determination whether it would be granted or denied. The witness would also have testified that the decision to grant or deny is not based solely on Jackson's probationary status or the outcome of the case and is instead based on a totality of circumstances, including Jackson's conduct in this case as well as any other incidents he had with law enforcement.
The court denied Jackson's motion to withdraw his plea. It acknowledged that the CCW rejection "had a significant negative effect on Mr. Jackson's thinking about this misdemeanor conviction because it implicated his business in certain respects." But the court also noted that the CCW was the sheriff's prerogative and not necessarily related to the outcome of this case or any other specific factor. It recognized that the 10 days of custody was a significant concern for Jackson, but stressed that the court had been exceedingly clear when the plea offer was accepted that it had not yet decided whether to impose any jail time. Because the issue of surrendering the horse had been resolved well before sentencing, the court did not find that to be persuasive. It was similarly unconvinced that his pet cat was a significant factor given that Jackson had the opportunity to petition for the cat's return but had not done so. Altogether, the court decided that Jackson had failed to provide "clear and convincing evidence that would support the withdrawing of [the] plea."
Jackson's petition for a writ of habeas corpus and appeal from the order after judgment followed. His request for a certificate of probable cause was initially denied but later granted and deemed part of the record on appeal.
In August 2017 Jackson filed an initial appeal, but later abandoned it to allow the trial court to exercise jurisdiction over the motion to withdraw the plea.
DISCUSSION
A. Relevant Legal Standards
A guilty plea is valid as long as the record affirmatively shows that under the totality of circumstances, the plea was made voluntarily and intelligently. (People v. Mosby (2004) 33 Cal.4th 353, 361.) A plea is made voluntarily and intelligently when, among other elements, it is made with the advice of competent counsel. (Brady v. United States (1970) 397 U.S. 742, 750-756.) Under section 1018, at any time before judgment the court may for good cause shown permit the plea of guilty to be withdrawn and a plea of not guilty substituted. (§ 1018.) Good cause, which must be established by clear and convincing evidence, requires that moving defendants show they were "operating under mistake, ignorance, or any other factor overcoming the exercise of [their] free judgment." (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) To successfully challenge a guilty plea on the basis of ineffective assistance of counsel, a defendant must establish both: (1) deficient performance by counsel and (2) a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 58-59, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) B. Performance
This standard, which both parties agree governs the dispute in this case, has directed the movant show as part of the prejudice inquiry that the defendant would "have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 58-59, italics added.) Two recent immigration-related cases from the United States Supreme Court and California Supreme Court suggest that this analysis should more broadly consider alternatives beyond an objectively reasonable insistence on proceeding to trial, such as a defendant's subjective significance or the promise or expectation of a different bargain. (See Jae Lee v. United States (2017) 582 U.S. ___ [198 L. Ed. 2d 476, 137 S.Ct. 1958, 1966] (Lee); People v. Martinez (2013) 57 Cal.4th 555, 567.) If there is a distinction, it makes no difference here because Jackson has failed to show a reasonable probability that but for his attorney's performance he would have pleaded differently, whether analyzed subjectively or objectively and irrespective of whether such analysis considered alternative bargains, which would be unlikely here given the broad latitude of the sheriff within the particular dynamic of the CCW process.
To demonstrate deficient performance, a defendant must show that the "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland, supra, 466 U.S. at pp. 687-688.) Analysis of counsel's performance requires consideration of the totality of the circumstances in each case. (Id. at p. 690 ["The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance."].)
Jackson argues that affirmative misadvice relating to the collateral consequences of a misdemeanor conviction on his CCW constitutes deficient performance. The People do not argue that defense counsel have no obligation to accurately advise clients regarding the collateral consequences of a guilty plea on firearms possession and licensing issues. Instead, they contend that the lawyer's performance in this case was not deficient because any misadvice "related to speculative future events" and was therefore "inconsequential."
Jackson also briefly argues that he was incorrectly advised that he did not have the right to withdraw his plea at the time of sentencing. But he offers no evidence to support this claim, and the record reflects that defense counsel requested to withdraw the plea at the time of sentencing.
Courts look to legal professionals' resources to gauge prevailing norms, including American Bar Association (ABA) and National Legal Aid and Defender Association (NLADA) standards. (See Padilla v. Kentucky (2010) 559 U.S. 356, 367 (Padilla); People v. Ogunmowo (2018) 23 Cal.App.5th 67, 77.) According to the ABA Standards for Criminal Justice, defense counsel should address considerations deemed important by the defendant in reaching a decision on a plea deal and "[t]o the extent possible . . . determine and advise the defendant, sufficiently in advance of the entry of the plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea." (ABA Standards for Criminal Justice, Pleas of Guilty (3d ed. 1999) Stds. 14- 3.2(b), (f), p. 116.) The comments to ABA Standard 14-3.2 appreciate the difficulty for defense counsel in addressing "every likely effect of a plea in all circumstances" (id., com. to Std. 14-3.2(f), p. 126) and therefore direct counsel to "interview the client to determine what collateral consequences are likely to be important to a client given the client's particular circumstances and the charges the client faces." (Id., com. to Std. 14-3.2(f), p. 127.) NLADA Guidelines echo the ABA's guidance, asserting that "counsel should be fully aware of, and make sure the client is fully aware of . . . consequences of conviction such as deportation and civil disabilities." (NLADA, Performance Guidelines for Criminal Defense Representation (4th ed. 2006) Guideline § 6.2(a)(3).)
American Bar Association, Standard 14-3.2, Responsibilities of defense counsel (<https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_guiltypleas_blk/#3.2> [as of Sep. 23, 2019], archived at < https://perma.cc/3DC8-B92H>).
National Legal Aid and Defender Association, Performance Guidelines for Criminal Defense Representation, Guideline 6.2, The Contents of the Negotiations (<http://www.nlada.org/defender-standards/performance-guidelines/black-letter> [as of Sep. 23, 2019], archived at < https://perma.cc/K9LF-N3X2 >).
When he entered into the plea deal, Jackson had held a CCW since the age of 21, successfully applied for reissuance 11 times, and maintained a job that required him to hold a CCW (or, at least, one in which a CCW was an utmost priority). Because of its direct connection to his employment, objectively speaking it was a substantial factor in considering whether to accept the court's terms, and any reasonable effort to investigate Jackson's personal concerns regarding collateral consequences would have revealed the CCW issue. Furthermore, based on testimony from the hearing on the motion to withdraw as well as the record of the hearings in July and August 2017, Jackson had advised defense counsel that his ability to possess firearms, including the CCW, was personally significant.
The law relating to the CCW process is well-settled and easily accessible. (See § 26150.) A CCW may be issued by a county sheriff only after findings that: (1) the applicant is of good moral character and, after a background check, is not prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm; (2) good cause exists for the license's issuance; (3) the applicant has completed a firearms safety course; and (4) the applicant meets the appropriate residency requirement. (§§ 26150, 26155.) Additional concealed weapons license application and background check requirements, as well as license denial, suspension or disqualification standards, are detailed under sections 26150-26225. California law "gives 'extremely broad discretion' to the sheriff concerning the issuance of concealed weapons licenses [citation] and 'explicitly grants discretion to the issuing officer to issue or not issue a license to applicants meeting the minimum statutory requirements.' " (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805-806 [prior codification at § 12050], quoting Nichols v. County of Santa Clara (1990) 223 Cal.App.3d 1236, 1241 and Erdelyi v. O'Brien (9th Cir. 1982) 680 F.2d 61, 63.) As the trial court noted in taking judicial notice of the legal framework, "that's been the law for quite some time. It's historic. It's been in place for a number of years since the early days of our statehood." B. Prejudice
On appeal, unlike in the trial court, Jackson does not argue deficient performance by defense counsel with respect to the horse and cat possession issues, instead suggesting that "the evidence of [counsel's] deficient representation goes to bolster [Jackson's insufficient assistance of counsel] claim as to the CCW permit because it shows a pattern of misrepresentation." But his failure to research the two issues in detail does not rise to the level of a pattern of misrepresentation. Unlike the CCW issue, the record does not show that Jackson's possession of the animals was a significant concern. Jackson sold the horse before sentencing and failed to petition for the cat's return prior to the hearing on the motion to withdraw the plea, despite having fulfilled the counseling requirement, a prerequisite to the petition.
The critical issue in this case is whether defense counsel's arguably deficient advice caused Jackson to plead guilty. Courts assess prejudice on a case-by-case basis in light of all of the circumstances, recognizing that "[s]urmounting Strickland's high bar is never an easy task." (Padilla, supra, 559 U.S. at p. 371; Lee, supra, 582 U.S. at p. ___ .) Courts do not disturb guilty pleas "because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies" but instead ground their analysis in "contemporaneous evidence to substantiate a defendant's expressed preferences." (Lee, supra, at p. ___ .)
Jackson argues that just as courts have considered immigration-related collateral consequences in determining ineffective assistance under the Sixth Amendment, we too should look beyond the direct effects of the guilty plea and consider the collateral effect of a plea on firearms possession generally and the CCW specifically. He points out that the Supreme Court has "never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland." (Padilla, supra, 559 U.S. at p. 365.) According to Jackson, the "unique nature of deportation" that persuaded the Supreme Court to consider collateral consequences in Padilla can also be applied to firearms possession.
We need not decide whether or under what circumstances prejudice may be found in the collateral consequences of a guilty plea on firearms possession, however, because even if we assume it may, Jackson has failed to show that he would have pleaded differently but for his counsel's performance. Jackson's argument fails to overcome the challenges presented by the automatic lifetime ban on firearms possession triggered by a felony conviction. Had Jackson declined the court's offer, which was the only offer available, he would have risked an automatic lifetime ban following trial. Thus, the more that firearms possession was the critical, or even determinative, issue, the more likely it is that he would have tried to avoid that risk.
Jackson's argument might nevertheless be viable if the preliminary hearing had revealed gaps in the prosecution's case or the reasonable possibility of a viable defense. But on appeal, he fails to grapple with the strength of the evidence presented at the preliminary hearing. Under section 597, subdivisions (b) and (d), every person who "deprives of necessary sustenance . . . any animal . . . and whoever, having the charge or custody of any animal, either as owner or otherwise," fails to provide the animal with proper food is, for each offense, "guilty of a crime punishable . . . as a felony" or, alternatively, "as a misdemeanor." (See generally People v. Sanchez (2001) 94 Cal.App.4th 622.) The transcript of the preliminary hearing fully supports the trial court's conclusion that a horse owned by Jackson had been deprived of food and was "emaciated; in effect, starving to death." There was testimony from multiple eyewitnesses as well as photographic evidence and expert opinions. Against this evidence, there is no reasonable probability Jackson would have risked a lifetime ban on firearms possession while the court's terms were available.
Separately from the direct appeal (In re Jackson, case No. D074807), Jackson petitions for writ of habeas corpus on the same grounds, "that the trial court erred in denying his motion to withdraw his guilty plea based on ineffective assistance of counsel in violation of his right to counsel under the Sixth Amendment." The same reasons that cause us to affirm the court's order denying his motion to withdraw his guilty plea also compel us to deny his writ petition. --------
DISPOSITION
The order is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. AARON, J.