Opinion
C081616
12-06-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD KNOWLES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F05248)
A jury convicted defendant Richard Knowles of possession of heroin for sale. The trial court found that he had a prior conviction for the same offense, a prior strike, and two prior prison terms.
Before sentencing, defendant sought and was granted leave to proceed in propria persona. He moved to vacate the judgment and for new trial. Along with other contentions not renewed on appeal, defendant alleged that trial counsel was ineffective in failing to convey a pretrial offer of a four-year prison sentence, which he would have accepted had he known of it, before the offer expired. The trial court denied the motion and thereafter imposed a nine-year state prison term.
Defendant now contends the trial court abused its discretion by denying the motion without holding an evidentiary hearing. We agree and shall remand with directions that the court hold such a hearing.
I. BACKGROUND
A. Trial Evidence
On the afternoon of August 26, 2015, Sacramento County law enforcement officers performed a traffic stop on a car in which defendant was a passenger. After defendant made furtive movements, an officer ordered him out of the car at gunpoint. He had $568 in cash on his person. The car contained marijuana packaged in five baggies, 6.03 grams of heroin in a separate package (enough for 60 to 120 individual doses), a vape pen, and a cell phone belonging to defendant. A search of the phone revealed a picture of cash and another picture showing a scale with what appeared to be cocaine, both taken near the time of defendant's detention. The car did not contain indicia of personal use of drugs, such as syringes or a spoon for heating the heroin. An expert on possession of heroin for sale opined that the amount of heroin, the sum of cash in defendant's possession, the photos on defendant's cell phone, and the separately packaged marijuana, proved that the heroin was possessed for purposes of sale.
Defendant testified that he used heroin and marijuana to contend with chronic seizures, pain, and bronchitis. He had a lot of cash on him because he does not have a bank account or credit cards. He denied possessing the heroin for sale. B. Procedural History
A felony complaint executed August 28, 2015, accused defendant of possession of heroin for sale (Health & Saf. Code, § 11351) and alleged two prior convictions: one for the same offense, and the other for carjacking, a strike (Pen. Code, §§ 215, 667, subds. (b)-(i)).
Undesignated statutory references are to the Health and Safety Code.
After a preliminary hearing on September 24, 2015, the trial court denied defense counsel's request to reduce count 1 to misdemeanor possession for personal use, held defendant to answer, and deemed the complaint an information. On December 2, 2015, the People filed an amended information which added the allegation of two prior prison terms on the prior convictions.
Before the amended information was filed, the trial court placed on the record that the People had offered defendant a six-year state prison term (the middle term of three years, doubled for the strike). Defendant's maximum exposure under the amended information was 13 years.
On December 2, 2015, just before trial began, defendant said, "I want the offer to 16 months, doubled up to 32. That was the offer they made to me." The trial court asked, "That was the offer made prior to prelim, right?" The prosecutor said, "It was actually low term times two, which is two years." Defendant said, "I have the card. 16 double, 32." Clarifying the prosecutor's statement, the court said, "Low term on [section] 11351 is two years doubled, would have been four years. But the offer at this point, is midterm, doubled, six years." Defendant said he understood and rejected the offer.
Sixteen months is the low term for possession of heroin for personal use. (§ 11350.) What defendant meant by "the card" will become clear when we discuss his motions to vacate the judgment and for new trial.
On December 8, 2015, the jury convicted defendant on count 1. In a bifurcated proceeding, the trial court found the prior conviction and prior prison term allegations true. The court then granted defendant leave to discharge counsel and to proceed in propria persona.
The defendant subsequently filed several posttrial motions. Among defendant's motions was one that sought an "In re Alvernaz Hearing/with Evidentiary Hearing[/]Motion For A New Trial." This motion asserted that defendant received "ineffective assistance of counsel during the pre-trial stages of these proceedings[,] namely plea-negotiations[,] by failing to correctly and accurately communicate prosecution's offer to the defendant before the offer expire[d][,] resulting in the rejection of plea-bargain on incompetent advice." (Unnecessary capitalization omitted.)
In re Alvernaz (1992) 2 Cal.4th 924 (Alvernaz).
In a supporting declaration, defendant asserted that trial counsel misinformed him about the People's offer before the preliminary hearing. Instead of the actual offer of four years in state prison (the low term on count 1, doubled), counsel said the offer was 32 months. Defendant rejected that purported offer because he did not think 32 months was a possible sentence for violating section 11351 with a strike: In 2012 he plea-bargained a four-year sentence for the very same offense. In addition, counsel misadvised him that the case looked like a simple possession case (§ 11350) which the trial court, in reliance on Proposition 47, would reduce to a misdemeanor. Counsel also failed to advise defendant of his maximum exposure; he learned it only when the trial court stated it in open court. If defendant had understood that the prosecutor considered the evidence of possession for sale in this case stronger than in his prior case, and that he could avoid a 13-year exposure only by accepting the four-year offer that was actually on the table, he would certainly have done so. Defendant further argued that his history in the criminal justice system, as well as the specific facts of this case, showed that he would have wanted to negotiate a bargain, as he instructed counsel to do.
As an exhibit to the declaration, defendant attached a photocopy of counsel's business card which bore the handwritten sentence, "They want 32[ months] state prison." The card does not show when the sentence was written, but it gives defendant's next court date as September 24, 2015, the date of the preliminary hearing.
In a subsequent declaration, defendant averred that this statement was written on August 28, 2015, at the time of arraignment.
Defendant later filed another motion for new trial, raising the same ineffective-assistance argument and attaching an excerpt of the transcript of the preliminary hearing in which counsel argued for reducing the charge to simple possession.
Defendant's supporting declaration averred that counsel told him at the time of arraignment, on August 28, 2015, that the People had offered 32 months, but "we" had rejected the offer and set a preliminary hearing date. Defendant said he was amenable to accepting the offer, which was better than the four-year offer he accepted in his 2012 case. Counsel responded that since then Proposition 47 was enacted, and this should now be a misdemeanor case. Counsel advised defendant to reject the 32-month offer and proceed to preliminary hearing because at that time the charge would be reduced or dismissed. Counsel also told defendant his maximum exposure was three years. Since that was only four months more than the offered plea, defendant decided to follow counsel's advice and reject the offer.
On February 26, 2016, the trial court held a hearing on all of defendant's motions.
As to the motions at issue, the court noted two different errors by trial counsel. First, as counsel's business card established, counsel misunderstood the original offer as 32 months rather than four years. Second, at the preliminary hearing, counsel mistakenly told the court that defendant's maximum exposure would be six years.
The trial court then explained that it would not have approved a bargain for a 32-month sentence because that would have been an illegal plea. At the preliminary hearing, when defendant asked for that sentence, the court explained that a 32-month plea was never available and the offer had really been four years, but that offer was no longer on the table and the present offer was six years. Furthermore, the two prison priors the People proposed to add by amending the information would increase defendant's exposure by two more years.
Defendant said he knew from his prior conviction that the low term doubled for a violation of section 11351 was four years, and believed in reliance on counsel's advice that a 32-month offer was on the table. Accordingly, he concluded the charge was being reduced to a violation of section 11350, as counsel had said it would be.
The trial court said, "Okay. But here's the thing. [¶] . . . [¶] Because low term doubled is four years, you knew that because you had just done four years. If 32 months had been offered, at least in your mind, and [counsel]'s mind, you didn't take that either. You didn't want the 32 months when it was originally offer[ed] [prior to the preliminary hearing]." Defendant disagreed, saying he did want the 32 months.
The trial court asked the prosecutor if her file showed "when the low term doubled was offered." The prosecutor replied, "It was offered and rejected on September 11th, 2015. He was arraigned on August 28th. So sometime between August 28th and the September 11th, 2015, date that offer was conveyed to [counsel], and on September 11th, 2015, the defendant rejected it and requested less time."
Nothing in the appellate record supports the prosecutor's statements. There are no reporter's transcripts for any proceedings in this time frame, and the minute orders covering the period August 28, 2015, to September 11, 2015, do not show whether any offers were made or rejected then.
The trial court said, "All right. And from the court file the defendant was arraigned on August 28th. [Counsel] was present. On September 10th there was another appearance. Someone stood in for [counsel] on that day. And on September 11th defendant was present in custody with his attorney. Not guilty pleas were entered with no time waiver. Preliminary hearing was set on September 23rd. It was heard on the 24th, and defendant was held to answer. Bail was reduced. [¶] So on September 11th, [defendant], you were in court, you entered a not guilty plea. That is a rejection of the—[¶] . . . [¶] —offer."
Defendant responded, "And the card that I presented to the Court as evidence in this matter was presented on me at my arraignment on August 28th, and [counsel] on the card rejected the plea offer and set the prelim date on the same day. [¶] . . . [¶] . . . I'm going off my attorney's advisement."
"[M]y attorney's advisement" apparently meant counsel's alleged prediction that the court would reduce count 1 to misdemeanor simple possession. If counsel so advised defendant and he believed it, this could explain why he would reject an offer entailing state prison time (although it would not explain why he later said he wanted the 32 months, knowing that it was not a possible sentence for possession for sale with a strike). --------
Defendant asserted further, "I was under the impression my maximum exposure going to trial and losing was six years. [¶] . . . I've been in the system since I was 17. I've never been to trial. I've always took [sic] a plea agreement, which is why my mother and [counsel] are subpoenaed today. [¶] So all I was asking the Court was to consider is [sic] I've never been to trial. I've been arrested since I was nine, and I've always took [sic] a plea, no matter what. No matter what the situation I've always took [sic] a plea. [¶] And you're right, under the advisement and counsel of . . . a retained private counsel, not a Public Defender, which [I have] been represented by 99.9 percent of the time, what am I supposed to do in that situation when I'm advised and consulted that . . . if you lose at trial, you face six years? [¶] Your Honor, with the case, the facts and the circumstances, I'd do it again every day for six years, because six years on a non[-]violent offense is four years. I'm 34 with 19 years in custody. It's not a problem. I can do that time, innocent or guilty."
The trial court replied that it told defendant before trial his maximum exposure was 13 years and the People were offering six, but he did not want that: "That's the bottom line." The court then denied defendant's motion for a new trial and sentenced him to nine years in state prison.
II. DISCUSSION
Defendant contends the trial court abused its discretion by not holding an evidentiary hearing on his motions, requiring reversal and remand. We agree. On this record, we cannot determine whether trial counsel accurately conveyed the prosecution's four-year offer, or defendant's true maximum and minimum exposure if he rejected the offer, before the offer expired. If not, defendant might well be entitled to the relief he sought below.
On a motion for new trial, the trial court has discretion whether to hold an evidentiary hearing. (People v. Williams (1997) 16 Cal.4th 635, 686.) The court should do so only if " 'necessary to resolve material, disputed issues of fact.' " (Ibid.) We review the trial court's denial of a new trial motion without an evidentiary hearing for abuse of discretion. (Ibid.)
In Alvernaz, supra, 2 Cal.4th 924, our Supreme Court held that a defendant may be entitled to a new trial due to ineffective assistance of counsel if the defendant was not told accurately before trial about a plea offer that he would have accepted and the trial court would have approved, proceeded to trial in ignorance of the offer, was convicted, and received a sentence less favorable than the offer. (Id. at pp. 928, 933-936; see also Lafler v. Cooper (2012) 566 U.S. 156, 161 [offer rejected on counsel's advice]; Missouri v. Frye (2012) 566 U.S. 134, 138-139 [offer not communicated before it expired].) Misinformation about the maximum and minimum sentences a defendant might face after trial may fall below the standard of competent advice. (Alvernaz, supra, at p. 937; In re Vargas (2000) 83 Cal.App.4th 1125, 1139.)
To determine whether an effectively represented defendant would have accepted the offer, the factors to consider 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." (Alvernaz, supra, 2 Cal.4th at p. 938.) The defendant must also establish the probability that the trial court would have approved the offer as an informed exercise of its responsibility to protect the public interest. (Id. at pp. 940-941.)
On this record, some of the Alvernaz factors weigh in defendant's favor and none clearly weigh against him. There was a great disparity between the four-year offer allegedly made and the 13-year exposure defendant faced if convicted at trial. Defendant's attempt (according to his second declaration) to accept the 32-month proposal he mistakenly believed to be on the table, as well as his practice of taking pleas rather than going to trial (presumably easy to verify from his criminal history), potentially demonstrate his amenability to negotiating a plea bargain. And there is no reason to think the trial court would have refused to approve a four-year offer, which would have been a lawful disposition of defendant's case if the enhancements were dismissed as part of a negotiated plea.
The Alvernaz factors which the record does not enable us to resolve include whether counsel accurately communicated the People's offer and whether he accurately advised defendant about the consequences of accepting or rejecting the offer. Defendant's declarations stated a prima facie case that counsel failed in both respects. If counsel had been called to testify in response to defendant's subpoena, these matters could have been clarified.
No evidence actually before the trial court refuted defendant's claims that he was misadvised about both the actual offer and his maximum exposure should he reject the offer. The only physical evidence of what was conveyed to defendant was defense counsel's business card, found authentic by the trial court, which stated the offer as 32 months. The prosecutor asserted, citing unidentified material in her files which was not placed in evidence, that the true four-year offer was accurately conveyed to defendant and rejected before the preliminary hearing—but unsworn statements by counsel are not evidence. (See Bostic v. Love (1860) 16 Cal.69, 72-73; People v. Barajas (1983) 145 Cal.App.3d 804, 809.) Furthermore, as the court noted, the preliminary hearing transcript established that counsel was grossly in error as to defendant's maximum exposure if he rejected the offer and stood trial. In light of this evidence and the possibility of obtaining more evidence from counsel, it was an abuse of discretion for the court to take the prosecutor's unsworn assertions as sufficient to decide the matter against defendant without an evidentiary hearing. At best, those assertions created a dispute on material facts, which it is the purpose of an evidentiary hearing to resolve. (People v. Williams, supra, 16 Cal.4th at p. 686.)
Our confidence in the trial court's ruling is also undermined by the court's focus on peripheral points: Whether defendant could have made a 32-month deal that the court would have approved, and whether he rejected a six-year offer after learning his true maximum exposure. The first point would have been relevant under Alvernaz if defendant had claimed a 32-month offer was lawful and approvable, but he did not. In his first declaration he said he believed it was not possible, and his second declaration expressed interest but did not speak to lawfulness or approvability. The second point, which the court called "the bottom line," was irrelevant to the Alvernaz issue: The fact that defendant rejected a six-year offer did not tend to prove he would have rejected a four-year offer.
The People urge us to uphold the trial court's ruling. However, the People's argument is based on the incorrect premise that defendant was complaining about being denied the chance to accept an offer for 32 months. As we have explained, his motions made clear that the offer he claimed to have been wrongly denied the chance to accept was for four years. Thus, the People's arguments are unpersuasive.
III. DISPOSITION
The ruling denying defendant's new trial motion is vacated, and the matter is remanded to the trial court with directions to hold an evidentiary hearing on the motion.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
HOCH, J.