Cerda v. Hedgpetch
| Decision Date | 05 October 2010 |
| Docket Number | No. CV 08–0920 DSF (AJW).,CV 08–0920 DSF (AJW). |
| Court | U.S. District Court — Central District of California |
| Parties | Joe Luis CERDA, Petitioner,v.HEDGPETCH, KERN STATE PRISON, Respondent. |
OPINION TEXT STARTS HERE
Brianna J. Fuller, Federal Public Defenders Office, Los Angeles, CA, for Petitioner.Beverly Kay Falk, Colleen M. Tiedemann, Peggy Z. Huang, CAAG–Office of Attorney General of California, Los Angeles, CA, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
The Court has reviewed the entire record in this action, the Report and Recommendation of Magistrate Judge (“Report”), and respondent's objections. The Court concurs with and adopts the findings of fact, conclusions of law, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.
On November 17, 2005, petitioner was charged by felony complaint with two counts of possession of a controlled substance. The complaint also alleged that petitioner had suffered a prior felony conviction for assault with a deadly weapon or with force likely to produce great bodily injury. [Lodged Document (“LD”) 12; Evidentiary Hearing Exhibit (“EH Ex.”) 101].
Petitioner met his appointed counsel, Deputy Public Defender Roger Whitenhill, on November 18, 2005. [Evidentiary Hearing Transcript (“EHT”) 7]. At the time, Whitenhill possessed a copy of the complaint against petitioner, which included Deputy District Attorney John Urgo's hand-written initial plea offer in the top right-hand corner of the first page. [EHT 8, 16]. Urgo's initial offer was six years in prison, which was the high-term for a violation of Penal Code section 11350(a), doubled under the Three Strikes Law as a result of the prior strike conviction. [EH Ex. 101; EHT 8]. Whitenhill explained the prosecution's six year offer to petitioner. Petitioner told Whitenhill that he had a drug problem and the two discussed whether petitioner would be eligible for a Proposition 36 (“Prop 36”) disposition,2 which would have provided petitioner the benefit of drug treatment, a noncustodial sentence, and eventual dismissal of the charge. [EHT 17, 20, 24–25, 38, 49].
Whitenhill subsequently met with Urgo to propose a disposition that included a referral for Prop 36 eligibility. Urgo agreed to extend such an offer. Thus, petitioner was offered a deal pursuant to which he would receive either Prop 36 treatment (if the 1993 conviction was not deemed to be a strike), or a prison term of six years (if the 1993 conviction was deemed to be a strike). [EHT 18, 20; EH Ex. 301 at 2].
Whitenhill discussed that offer with petitioner. At the time of this discussion, Whitenhill was aware that petitioner's prior conviction under section 245(a)(1) of the Penal Code did not necessarily constitute a strike under state law. Rather, the conviction would qualify as a strike only if petitioner either personally used a weapon or caused great bodily injury. [EHT 11–14]. See People v. Rodriguez, 17 Cal.4th 253, 261, 70 Cal.Rptr.2d 334, 949 P.2d 31 (1998). Petitioner denied using a weapon, but told Whitenhill that his sister had tripped and suffered a broken vertebra during the assault. Whitenhill believed that the injury would be characterized as great bodily injury. Although he did not have a copy of it, Whitenhill knew that a preliminary hearing transcript existed. According to Whitenhill's notes, he and Urgo were unsure whether the preliminary hearing testimony would be admissible to prove the strike. [EH Ex. 104]. At the evidentiary hearing, however, Whitenhill stated that he knew the transcript would be admissible to prove that the prior conviction was a strike, but in his opinion, there was an issue of “provability.” [EHT 11–14, 29–31]. As Whitenhill explained, there was a “causation” issue because petitioner had told Whitenhill that his sister had tripped during the altercation. In Whitenhill's mind, that raised a question about whether petitioner had caused her great bodily injury. Although petitioner told Whitenhill that he did not believe that the 1993 conviction was a strike, Whitenhill knew that the status of petitioner's prior conviction was a legal determination and that petitioner's opinion was essentially irrelevant. [EHT 14–15, 18].
At the time of the plea negotiations, Whitenhill also was aware that petitioner had been convicted of drug possession in 2003 and sentenced to 32 months.3 That sentence suggested to Whitenhill that petitioner had admitted in 2003 that his 1993 conviction was a strike.4 According to Whitenhill, when he asked petitioner about the 2003 sentence, petitioner said that he had not admitted to a prior strike based on the 1993 conviction, and explained that he had been sentenced to 22 months plus a separate consecutive term of 8 months (which, of course, does not add up to a 32 month sentence). [EHT 20–21].
The record also includes a determination made by a deputy district attorney under penalty of perjury on November 17, 2005 stating that petitioner is ineligible for Prop 36 because he had suffered a prior conviction for a serious or violent felony. This document was part of Whitenhill's file. [EH Ex. 102]. It is not clear whether Whitenhill possessed this document at the time of the plea negotiations, or whether he believed that the document was inaccurate or subject to challenge. It also is not clear why Urgo would have offered a Prop 36 referral if his office already had determined that petitioner was ineligible for Prop 36.
Nevertheless, because Whitenhill thought there was some question about whether the prosecution could prove that the 1993 conviction was a strike, he suggested to petitioner that he attempt to obtain an offer for a four year term without a Prop 36 referral. Whitenhill then met with Urgo a third time. He inquired about a deal for a four year prison term (which consisted of the mid-term doubled) without the Prop 36 referral. Urgo accepted that proposal. [EHT 9, 11].
Ultimately, Whitenhill returned to petitioner with two options: (a) a Prop 36 referral, but a prison term of six years if petitioner was found ineligible for Prop 36; or (b) a four year prison term, but no Prop 36 referral. [EHT 18–20, 36–40]. Whitenhill told petitioner that he had a good chance of receiving a Prop 36 disposition because—other than the 1993 assault conviction—petitioner's prior convictions were for drug possession. Petitioner wanted additional time to consider his options, but Whitenhill told him that the offer would not remain open for more than a day.5 [EHT 31–32, 38–40].
Based upon all of the information he possessed at the time, Whitenhill believed, and advised petitioner, that there was a good chance that petitioner would receive a Prop 36 disposition. On the other hand, Whitenhill also conveyed to petitioner that there was a chance that he would be found ineligible for Prop 36 because of the 1993 conviction. [EHT 15, 24].
Petitioner chose option (a), which included a Prop 36 referral. [EHT 31–32, 40, 50]. Petitioner believed that he would be remanded to drug court for a determination of whether his 1993 conviction was a strike. Petitioner knew that he was not guaranteed a Prop 36 disposition, but he based his choice on his having been told by Whitenhill that there was a chance that he would be eligible for a Prop 36 disposition. If petitioner had known that he had no chance at obtaining a Prop 36 disposition, he definitely would have accepted option (b), which contained a shorter prison term. [EHT 51–53; Petitioner's Declaration].6
Approximately one and one half hours passed between the conclusion of Whitenhill's discussions with petitioner and Urgo about petitioner's plea and the entry of petitioner's guilty plea. Whitenhill's office was three or four blocks from the courthouse. [EHT 8]. Although Whitenhill had questions about whether the 1993 conviction was a strike, he did not attempt to research the law regarding the admissibility of a preliminary hearing transcript concerning a prior conviction to prove a strike, he did not attempt to obtain a copy of the preliminary hearing transcript concerning the 1993 conviction to see if there really was a “causation” issue, and he did not attempt to obtain petitioner's criminal history in order to determine whether he had admitted that the 1993 conviction was a strike in 2003.
That afternoon, petitioner entered a guilty plea. The following colloquy took place:
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