Moser, In re

• Decision Date: 02 December 1993
• Docket Number: No. S026837,S026837
• Citation: 24 Cal.Rptr.2d 723,6 Cal.4th 342,862 P.2d 723
• Court: California Supreme Court
• Parties: , 862 P.2d 723 In re Sandy Lee MOSER on Habeas Corpus.

Page 723

24 Cal.Rptr.2d 723

6 Cal.4th 342, 862 P.2d 723

In re Sandy Lee MOSER on Habeas Corpus.

No. S026837.

Supreme Court of California In Bank.

Dec. 2, 1993.

Richmond M. Flatland, Newark, under appointment by the Supreme Court, Riordan & Rosenthal, Dennis P. Riordan and Dylan L. Schaffer, San Francisco, for petitioner.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama and Ronald A. Bass, Asst. Attys. Gen., Ronald E. Niver and Catherine A. Rivlin, Deputy Attys. Gen., for respondent.

GEORGE, Justice.

In this case we must decide under what circumstances a defendant who has pleaded guilty may obtain relief on habeas corpus when, prior to entry of the plea, the trial court correctly advised the defendant of the length of the potential prison term, but erroneously advised the defendant as to the length of time he or she would remain on parole following release from prison.

As we shall explain, a defendant who has pleaded guilty after receiving inadequate or erroneous advice from the trial court with regard to the potential consequences of a plea generally is entitled to obtain relief only by establishing that he or she was prejudiced by the erroneous advice, i.e., by establishing, in the present context, that but for the trial court's erroneous advice with regard to the applicable parole term, the defendant would not have entered the guilty plea. Absent such a showing of prejudice, a defendant who has received erroneous advice regarding the length of parole can obtain relief only if the period of parole imposed conflicts with a specific, negotiated term of the plea agreement.

As discussed hereafter, in the present case the proceedings in the superior court on the habeas corpus petition did not focus upon, or resolve, the question whether petitioner was prejudiced by the trial court's erroneous advice regarding the consequences of the plea, or the question whether the period of parole was a specific, negotiated term of petitioner's plea agreement. Under these circumstances, we conclude that this matter should be remanded to the superior court to provide both parties the opportunity to present evidence relevant to these issues, and to enable the superior court to consider petitioner's claim in light of the governing legal principles set forth in this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Sandy Lee Moser, initially was charged with first degree murder and a firearm-use enhancement allegation arising from the killing of his former lover. Petitioner ultimately pleaded guilty to second degree murder in exchange for a reduction of the charges and currently is incarcerated in state prison pursuant to a judgment of conviction of second degree murder. In the present habeas corpus petition, he seeks an order that would vacate the judgment of conviction and permit him to withdraw his plea of guilty.

In addressing petitioner's request for relief, we begin by briefly summarizing the evidence introduced against petitioner at the preliminary hearing in the underlying criminal proceeding.

On the evening of September 29, 1985, the victim, Carol Young, was babysitting for the children of a friend, Teri Russell, at Russell's home in the Humboldt County town of Arcata. Young was joined by petitioner, her former lover (with whom she had a child, born in 1982). At 10:45 p.m., Young telephoned Russell, telling her, "It's time to come home now, there's going to be trouble." Russell asked, "Is it Sandy?" Young replied, "Yes."

Teri Russell returned home approximately 20 minutes later. She found Carol Young dead, the victim of multiple gunshot wounds. Petitioner was gone.

Later that same evening, petitioner awakened an acquaintance, Thomas Stover, at Stover's residence, located in the Mendocino County town of Redwood Valley. Petitioner, in an excited state, told Stover, "I blew Carol away.... I blew her away, bam, bam, bam." Petitioner asked Stover to assist him in concealing his automobile, and mentioned that he wanted to hide for a day. Petitioner also said he was going to kill himself. After siphoning some gasoline for his automobile, petitioner drove away. At some point thereafter, he was arrested for the murder of Young.

Robert Morris, a Humboldt County forensic pathologist, determined that the victim had been shot repeatedly at close range. In the course of the autopsy he performed, he identified a "defensive" bullet wound to the victim's wrist, and powder marks on her palms, suggesting that the victim had attempted to grab the firearm. Based upon powder burns located near the fatal gunshot wound to the victim's neck, Morris opined that "the gun [had been] forced hard against the [victim's] skin, hard enough to cause a ridge to come up," allowing the bullet to enter, exit, and reenter the victim's neck. The bullet thereafter pierced the base of the victim's skull, tearing through her brain.

Following the preliminary hearing, petitioner was held to answer on a charge of first degree murder (Pen.Code, §§ 187, 189) ¹ and an allegation of personal use of a firearm (§ 12022.5).

In May 1987, petitioner entered a negotiated plea of guilty to second degree murder, a crime punishable by a prison term of 15 years to life. (§ 190, subd. (a).) The trial court described the plea agreement as follows: "[T]he agreement is that you will plead guilty to the [c]ount in the Information agreed or stipulated to be a second degree murder charge. The District Attorney will dismiss the arming [sic ] allegation. Is that the agreement?" Petitioner responded affirmatively. The plea agreement nearly halved the potential minimum sentence of 27 years to life faced by petitioner (had he elected to proceed to trial on the charge of first degree murder, been found guilty of that charge, and been found to have personally used a firearm, the latter finding at that time invoking an additional two-year prison term). (§ 190, subd. (a); former § 12022.5.)

Before accepting petitioner's plea of guilty, the trial court fully and accurately advised petitioner of his constitutional rights. The court also accurately advised petitioner that the mandatory penalty prescribed by statute for conviction of murder in the second degree was confinement in the state prison for a term of 15 years to life. In addition, however, the trial court incorrectly advised petitioner, as follows, with regard to the potential parole term: "Do you understand that once you have concluded your term in prison, that there will be a period of parole which cannot exceed forty-eight months, and it works--actually, the term is thirty-six months; but if you add parole violations spaced just correctly, you could serve an additional forty-eight months in prison if the Board [of Prison Terms] determined that there should be a return on each violation." In fact, the applicable statute provides a maximum lifetime period of parole upon a conviction of second degree murder. (§ 3000.1, subd. (a).) ²

The trial court inquired whether petitioner's plea was freely and voluntarily made, and whether there was a factual basis for the plea, pursuant to section 1192.5, but improperly failed to advise petitioner of his right to withdraw the plea in the event the trial court at the time of sentencing withdrew its approval of the terms of the plea agreement (§ 1192.5). ³

Upon the trial court's acceptance of the negotiated plea, the People, pursuant to the terms of the plea agreement, moved to strike the firearm-use allegation. The parties waived a formal probation report, recognizing that there was only one possible prison term for second degree murder--fifteen years to life in the state prison. (§ 190, subd. (a).)

At the sentencing hearing conducted in June 1987, petitioner submitted a letter to the trial court explaining that he had entered his guilty plea "to spare those I love from the emotional pain and indignity of a trial." ⁴ The trial court thereafter imposed the mandatory sentence of 15 years to life in the state prison and advised petitioner of his appeal rights. In advising petitioner as to the parole consequences of his plea, however, the trial court repeated its earlier error, stating: "Once you have completed the term of imprisonment that I've just imposed upon you, there is a period of parole which is thirty-six months but which can extend to forty-eight months if there should be violations that are spaced just right."

The trial court also informed petitioner that he was obligated to pay a mandatory restitution fine, prescribed by section 13967, subdivision (a), of the Government Code. ⁵ Noting that petitioner had not been advised of this consequence of his plea, the trial court determined that there was "only one equitable thing to do and that is to impose the minimum fine." The court gave petitioner the option of withdrawing his plea in lieu of accepting the minimum fine, but petitioner accepted the minimum fine.

No appeal was filed, and petitioner was committed to the custody of the director of corrections to serve the term of imprisonment imposed by the court.

Three years later, in July 1990, petitioner filed a petition for writ of habeas corpus in the superior court, seeking leave to withdraw his guilty plea on the ground that the trial court and petitioner's counsel had advised him improperly as to the consequences of his plea, and that counsel improperly had informed petitioner that the case presented no appealable issues. In the memorandum that accompanied his petition, petitioner argued that the trial court had failed to advise him of the correct parole term. He did not specifically allege, however, that he would not have pleaded guilty to second degree murder had he been properly advised.

The superior court issued an order to show cause. The People then filed a return conceding the trial court's error in incorrectly advising petitioner of the applicable parole term prescribed by statute for second degree...