Alvernaz, In re

• Decision Date: 25 June 1991
• Docket Number: No. D012971,D012971
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 231 Cal.App.3d 792, 2 Cal.App.4th 1059 231 Cal.App.3d 792, 2 Cal.App.4th 1059, 60 USLW 2106 In re John P. ALVERNAZ, on Habeas Corpus.

Page 601

282 Cal.Rptr. 601

Previously published at 231 Cal.App.3d 792, 2 Cal.App.4th 1059

231 Cal.App.3d 792, 2 Cal.App.4th 1059, 60 USLW 2106

In re John P. ALVERNAZ, on Habeas Corpus.

No. D012971.

Court of Appeal, Fourth District, Division 1, California.

June 25, 1991.

Rehearing Denied July 2, 1991.

Review Granted Oct. 17, 1991.

Cleary & Sevilla and Charles M. Sevilla, San Diego, for petitioner.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Jeffrey S. Koch, and John T. Swan, Deputy Attys. Gen., for the People.

FROEHLICH, Associate Justice.

Petitioner seeks reversal of his criminal conviction upon the ground of ineffective assistance of counsel, the result of which was his entry of a plea of not guilty and submission to a jury trial. His position is that had he received adequate counsel during the plea bargaining stages of the case he would have accepted the bargain, entered a plea of guilty, and suffered a penalty much lighter than that received after the jury verdict of guilty.

We conclude that this issue is properly presented by the petition. Our review of the procedural background of the case and the substance of the petition indicates that the petitioner is in a position to raise the core issue presented. We will deny the petition because we reach the conclusion that the participation in a fair jury trial preserves all of the defendant's basic constitutional trial rights, thereby rendering any error of counsel at the plea bargaining stages legally harmless.

I. Procedural Background.

Petitioner was charged with robbery, burglary, kidnapping for the purpose of robbery, a weapons enhancement and a prior conviction. The crimes involved the abduction of three Mexican farm workers and the robbery at gunpoint of their cash. Prior to the time of trial the district attorney offered a bargain involving a plea to one count which would have resulted in a maximum exposure to custody of five years. Petitioner's counsel advised that should he go to trial and be convicted he would face maximum time in custody of eight years. In consideration of this advice petitioner elected to plead not guilty.

Petitioner received a jury trial which resulted in conviction of the charges and a sentence which petitioner now computes will result in incarceration for a minimum of 16 years, 7 1/2 months. The judgment of the trial court was affirmed by this court after hearing an appeal which asserted a number of errors. This court determined in an unpublished opinion (People v. Alvernaz (July 17, 1989) D007290) that no errors of substance had occurred in the trial and that the petitioner was properly and fairly tried and convicted. Petitioner's petition for review in the Supreme Court was denied.

Thereafter petitioner sought relief in the superior court by way of a writ, claiming mistakes of counsel prejudicially deprived him of his right to assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. The petition having been denied in superior court, it is now renewed before this court. ¹

II. Resolution of Preliminary Issues.

The Attorney General interposes several contentions which, if accepted, would permit our resolution of the case without confronting the central question of the petition. We proceed to consider and reject these several contentions.

A. "Illegality" of Proposed Plea Bargain.

The first argument for denial of the petition is that the plea bargain petitioner claims to have lost because of the bad advice of his counsel could not in any event have been accepted because it was an "illegal offer." Penal Code section 1192.7 ² prohibits plea bargains in cases involving charges of a "serious felony" or "any felony in which it is alleged that a firearm was personally used by the defendant." Exceptions to the prohibition can be made when "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." (§ 1192.7, subd. (a).)

The Attorney General contends none of the exceptions can be applicable to this case because the trial of the case establishes that there was sufficient evidence and also that the testimony of the material witnesses was obtainable. We must reject this approach to the question. Whether facts exist to establish one of the exceptions to section 1192.7 must be decided upon circumstances known to the parties at the time the plea bargain was made, not those which were developed by the later trial. The fact that the district attorney proposed the bargain amounts to a stipulation that the bargain would not violate section 1192.7. We cannot now devine the specific exception the district attorney may have been considering. In light of the migrant status of the complaining witnesses, however, it is certainly plausible that the continued availability of material witnesses was in doubt. In any event, we would utilize principles akin to estoppel in refusing to hear the prosecution at this point claim its own proposal for resolution of the case prior to trial constituted an "illegal offer." (Cf. Russell v. Rolfs (9th Cir.1990) 893 F.2d 1033.)

B. Sufficiency of Proof of Counsel's Inadequacy.

All parties acknowledge that the burden is upon the petitioner to establish that the performance of his counsel fell below an objective standard. (Strickland v. Washington (1984) 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674; People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.) We reject the Attorney General's argument that petitioner has not met this burden.

The evidence presented by petitioner consists of affidavits of the petitioner, his father, his mother and his wife. These affidavits establish that petitioner was advised by his counsel that the maximum confinement which might result from conviction would be approximately eight years. They also establish that this quantum of "risk" in terms of refusal of a plea bargain which might result in five years of incarceration was a material factor in petitioner's decision. The points and authorities of both the petitioner and the Attorney General, although not congruent in all respects as to the likely time to be served, are in agreement petitioner's risk was substantially more than eight years, as his counsel had advised, and in all likelihood was the sixteen years plus contended by the petitioner.

The Attorney General has presented no evidence controverting petitioner's affidavits. The affidavit of petitioner's trial attorney states that he cannot recall what advice he actually gave the petitioner respecting the potential sentence. We thus have no basis for discounting the petitioner's contentions. Taking them at face value, his decision to go to trial when the alternatives were either five or eight years in prison appears not unreasonable. We conclude, therefore, that the weight of the evidence supports petitioner's contention that he was given erroneous advice, and that this advice was crucial in reaching his decision to reject the plea bargain.

Does this error constitute ineffective assistance of counsel? We have upon occasion returned petitions of this sort to the trial court for an evidentiary determination of the standards of practice. In this case, however, the authorities are rather clear. It is counsel's obligation to investigate all defenses of fact and law available to his client (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859) and to determine and inform the client of all applicable statutory penalties (People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328; People v. McCary (1985) 166 Cal.App.3d 1, 212 Cal.Rptr. 114.)

We are satisfied that failure to provide a client with accurate advice as to the potential sentence to be served upon conviction (certainly when the information on the subject is readily available in the legal authorities) constitutes ineffective assistance of counsel. "To advise his client correctly, the lawyer needed no crystal ball; he had only to consult the ... Statutes and determine the provision applicable...." (Hill v. Lockhart (8th Cir.1989) 877 F.2d 698, 703.)

C. Prejudice in a Practical Sense is Demonstrated.

It will be our conclusion, infra, that whatever damage resulted from the imprudent rejection of the plea bargain was not prejudicial from a legal point of view. Before reaching this issue, however, we must determine that the decision not to accept the plea bargain in fact had a causal influence on the subsequent trial proceedings. The Attorney General contends that any assumption of prejudice is speculative because we cannot know with any certainty (1) that the prosecuting attorney would have carried through with the bargain, (2) that the defendant would have accepted it, or (3) that the court would have accepted the bargain.

We agree that a foundational requirement of petitioner's contention is a showing that, absent the mistaken rejection of the plea offer, he would have fared better in terms of end result. Where, for instance, the actual result of the trial is no worse than the risk defendant's counsel advised possible, there is no prejudice (see Cimino v. Robinson (1986) 6 Conn.App. 680, 507 A.2d 486). Also, petitioner's argument would be defeated could it be shown that the consummation of the bargain was unlikely even had petitioner elected to accept it. (See People v. Kusumoto (1985) 169 Cal.App.3d 487, 495, 215 Cal.Rptr. 347 (inadequate showing offer contained firm benefits); People v. Brown (1986) 177 Cal.App.3d 537, 223 Cal.Rptr. 66 (same); Williams v. Arn (N.D.Ohio 1986) 654 F.Supp. 226 (no unconditional offer ever made and offer withdrawn before trial).)

We find, however, that petitioner has met his burden of showing that the plea bargain would in all...