Ibarra, In re

• Decision Date: 08 August 1983
• Docket Number: Cr. 22366
• Citation: 193 Cal.Rptr. 538,666 P.2d 980,34 Cal.3d 277
• Court: California Supreme Court
• Parties: , 666 P.2d 980 In re David IBARRA on Habeas Corpus.

Page 538

193 Cal.Rptr. 538

34 Cal.3d 277, 666 P.2d 980

In re David IBARRA on Habeas Corpus.

Cr. 22366.

Supreme Court of California

In Bank.

Aug. 8, 1983.

Rowan K. Klein, Los Angeles, under appointment by the Supreme Court, and Klein & Nelson, Los Angeles, for petitioner.

Quin Denvir, State Public Defender, and Mark Fogelman, Deputy State Public Defender, as amici curiae on behalf of petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, Paul C. Ament and Cynthia Sonns Waldman, Deputy Attys. Gen., for respondent.

BROUSSARD, Justice.

Petitioner seeks a writ of habeas corpus after conviction upon a plea of guilty of robbery (Pen.Code, § 211) while armed (Pen.Code, § 12022, subd. (a)), and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). Petitioner's plea was entered pursuant to a "package-deal" plea bargain in which his two codefendants also pled guilty. He was sentenced in accordance with the bargain to a three-year term for the robbery, a one-year armed enhancement and a consecutive term of one year for assault with a deadly weapon.

Petitioner raises three basic contentions. First, he claims that he was denied effective assistance of counsel because his attorney urged him to accept a coercive plea bargain. Second, he argues that his plea was involuntary because he had not been properly advised of his rights. Finally, he maintains that his plea bargain was per se invalid because a "package-deal" arrangement is inherently coercive.

We have rejected the ineffective assistance of counsel claim because counsel's decision was a tactical one which might be made by competent counsel. We have also decided that, under normal circumstances, the trial court may properly rely on a validly executed waiver form in determining the voluntariness of a guilty plea. Nevertheless, when a defendant pleads guilty pursuant to a "package-deal" arrangement, the trial court has a duty to conduct further inquiry into the voluntariness of the plea: although such a bargain is not per se coercive, it may be so under a totality of the circumstances. Because petitioner has not alleged sufficient facts to support a showing of coercion, however, we are required to deny the petition for writ of habeas corpus without prejudice to his filing a new petition alleging sufficient facts in accordance with this opinion.

Two armed gunmen robbed a store in Downey. Police obtained a description of the getaway car, and began pursuit. The front-seat passenger of the car leaned out of the window and began shooting at the police. An officer observed the petitioner grabbing the assailant's belt buckle. Eventually, the car pulled over. Petitioner's two codefendants, the driver and frontseat passenger, were later identified by witnesses as the armed robbers.

Petitioner claims that, contrary to his plea, he is not guilty of any offense. He instead alleges that he had been intoxicated and asleep in the back seat of the car. To support his allegation, he cites the testimony of an investigative officer at the preliminary hearing that petitioner had been intoxicated and smelled of alcohol at the time of arrest. The officer also testified that an empty rum bottle was found in the back seat of the car. The sole set of fingerprints found on the bottle belonged to petitioner.

In explaining his guilty plea, petitioner sets out the following sequence of occurrences: He met with his appointed counsel about 15 minutes before his court appearance. Counsel advised him of a proffered plea bargain for a five-year term; however, the bargain was only available if all three defendants were to plead guilty. Counsel informed petitioner that he had filed motions to set aside the information, for severance and for discovery, but urged petitioner to accept the plea bargain, as a jury might nevertheless find him guilty. Counsel also warned petitioner that if the bargain was refused, it would be withdrawn as to his codefendants, who would likely be found guilty and face severe sentences. Counsel then asked petitioner to initial a printed waiver form, which enunciated certain constitutional rights, in order to save the court time in taking his plea. Petitioner complied.

The record of the plea proceeding does not reflect any of these allegations; however, it does show that the judge questioned petitioner as to whether he had read the form, understood his rights and discussed them with counsel. Petitioner replied affirmatively. He now claims that he had not read the form, nor discussed its contents with his attorney, but had responded affirmatively because he felt it was required and expected of him.

At sentencing, petitioner was not advised of his limited appeal rights. ¹ He alleges that he did not become aware of these rights until after time for appeal had expired. He nevertheless sent a "Notice of Appeal" to the Los Angeles County Superior Court, which was received but not filed. Petitioner then filed a petition for writ of habeas corpus with the Court of Appeal.

The Court of Appeal sent the Attorney General an ex parte communication requesting a response to the petition for habeas corpus. After receiving the response, but before petitioner could file a traverse, the Court of Appeal denied the petition. ² Petitioner then petitioned this court for a hearing, which we granted, and issued an order to show cause.

I. Urging the acceptance of a "package-deal" plea bargain does not per se constitute ineffective assistance of counsel.

Petitioner claims that he was denied effective assistance of counsel because his attorney urged him to accept a plea bargain which was coercive and unbeneficial.

As we shall explain, a "package-deal" plea bargain is not intrinsically coercive, but may be so under the individual circumstances. Unless counsel was aware of particular coercive forces, the decision to urge his client to accept such a plea bargain would be untainted. In People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, we held that failure to act in a reasonably competent and diligent manner resulting in the withdrawal of a potentially meritorious defense amounted to ineffective assistance of counsel, but that an informed tactical choice would not. In the instant case, counsel was diligent in preparing motions, including discovery, but apparently was convinced that the petitioner would likely be convicted, and would benefit from the proffered bargain. Such an informed, tactical judgment, even though it resulted in the withdrawal of a potentially meritorious defense that the petitioner had been intoxicated and asleep, ³ does not constitute incompetence. (See, e.g., People v. Hernandez (1979) 96 Cal.App.3d 856, 865, 158 Cal.Rptr. 434.)

II. Under normal circumstances, the trial court may properly rely on a validly executed waiver form in assessing the voluntariness of a plea of guilty.

The United States Supreme Court held in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 that before a defendant may enter a plea of guilty, he must knowingly and intelligently waive certain constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right to confront his accusers. (P. 243, 89 S.Ct. p. 1712.) "What is at stake for an accused facing death or imprisonment," the court stated, "demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought [citations], and forestalls the spin-off of collateral proceedings that seek to probe murky memories." (Pp. 243-244, 89 S.Ct. pp. 1712-1713.)

In In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, we explained that to assure compliance with this obligation, "the record must contain on its face direct evidence that the accused was aware, or made aware [of these rights and of the nature of the charges and the consequences of the plea]." (P. 132, 81 Cal.Rptr. 577, 460 P.2d 449, italics in original.) The recitation of rights need not be in legalistic language, so long as it conveys to the layman the essential character of the rights. (People v. Lizarraga (1974) 43 Cal.App.3d 815, 118 Cal.Rptr. 208.)

We further indicated in Tahl that something less than full admonishment of the defendant by the court might be permissible in a proper context. In a footnote, we stated that "were the court to ask counsel whether he had advised the defendant of his right of confrontation and ask the defendant whether he waived that right, receiving an affirmative reply to both inquiries, this would satisfy the requirement of an express, on-the-record waiver of that right. [Citation.] What is required is evidence that the particular right was known to and waived by the defendant. The explanation need not necessarily be by the court, although the waiver must be by the defendant. We reiterate, however, that wherever there is doubt an explicit and direct canvassing of the right with the defendant by the trial court is to be preferred, and may be necessary." (In re Tahl, supra, 1 Cal.3d at p. 133, fn. 6, 81 Cal.Rptr. 577, 460 P.2d 449.)

We subsequently approved the use of a waiver form in lieu of a personal appearance in misdemeanor proceedings in Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273. We recognized the prophylactic nature of the rules set forth in Boykin and Tahl, and "that the protection afforded by these decisions can be satisfied by counsel's presentation of an adequate waiver form, personally completed and signed by the defendant, and by counsel's affirmation that he informed his client of his rights and that his client knowingly and voluntarily waived them." (P. 292, 110 Cal.Rptr. 329, 515 P.2d 273.) We did not...