People v. Barella

• Decision Date: 06 May 1999
• Docket Number: No. S065511,S065511
• Citation: 84 Cal.Rptr.2d 248,20 Cal.4th 261,975 P.2d 37
• Court: California Supreme Court
• Parties: , 975 P.2d 37, 99 Cal. Daily Op. Serv. 3312, 1999 Daily Journal D.A.R. 4287 The PEOPLE, Plaintiff and Respondent, v. George Edward BARELLA, Defendant and Appellant

Page 248

84 Cal.Rptr.2d 248

20 Cal.4th 261, 975 P.2d 37, 99 Cal. Daily Op. Serv. 3312,

1999 Daily Journal D.A.R. 4287

The PEOPLE, Plaintiff and Respondent, v. George Edward BARELLA, Defendant and Appellant.

No. S065511.

Supreme Court of California

May 6, 1999.

Gerry W. McGee, Eureka, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman and Christopher W. Grove, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

In People v. Cortez (1997) 55 Cal.App.4th 426 (Cortez ), the Court of Appeal for the Fifth Appellate District held that a trial judge is not required to advise a defendant, upon his or her guilty plea, that the "Three Strikes" law (Penal Code section 667, subdivisions (b)-(i), 1170.12) limits the defendant's ability to earn conduct and work credits while incarcerated. ¹ In the present case, the Court of Appeal for the First Appellate District (Division Three) expressly disagreed with the reasoning set forth in Cortez, instead determining that in sentencing under the Three Strikes law, the trial court was required to advise defendant, prior to his guilty plea, that he was ineligible for parole until he had served four-fifths of his sentence. We granted the People's petition for review to resolve the conflict.

As we shall explain, the United States Supreme Court has stated that a defendant's parole eligibility date is not a direct consequence of which a defendant must be apprised before pleading guilty. (Hill v. Lockhart (1985) 474 U.S. 52, 55-56, 106 S.Ct. 366, 88 L.Ed.2d 203.) The credit limitation contained within the Three Strikes law serves a role functionally equivalent to a parole eligibility date, and we conclude that neither the federal or the state Constitution, nor California's judicially declared rules of criminal procedure, required the trial court to advise defendant, prior to his guilty plea, that he would be ineligible for release from prison until he had served four-fifths of his sentence. We therefore reverse the judgment of the Court of Appeal.

I.

The facts of this case, derived from the probation officer's report, are undisputed. Having received information from a confidential informant that defendant was a seller of heroin, Lake County Narcotics Task Force officers conducted a surveillance of defendant's apartment on August 23, 1995. Officers observed Robert Bounty, a suspected "customer" of defendant's, arrive at the apartment, after which the two men entered Bounty's vehicle and drove away, returning approximately 30 minutes later. When officers thereafter approached, defendant started to walk away. He ignored orders to stop and physically resisted arrest, throwing a "hype-kit" (i.e., drug paraphernalia) and a package of heroin over a fence during the struggle. Officers recovered the "hype-kit" and .28 grams of heroin.

Defendant subsequently waived his constitutional rights and provided a written statement to the police, acknowledging that he "threw some heroin down." He stated, however, that the heroin was for personal use, not for sale. Bounty also provided a statement, admitting that he went to defendant's apartment for the purpose of obtaining heroin; defendant told Bounty he was out of heroin; Bounty agreed to drive defendant to another location to acquire some, and in return, defendant agreed to give Bounty some heroin.

On October 20, 1995, defendant was charged by amended complaint with possession of heroin (Health & Saf.Code, § 11350) and misdemeanor resisting arrest. (§ 148, subd. (a).) The complaint alleged that defendant had suffered prior serious felony convictions ("strikes") for burglary (§ 459) and robbery (§ 211) within the meaning of the Three Strikes law.

On November 17, 1995, pursuant to a plea agreement, defendant pleaded guilty to possession of heroin and admitted a single prior serious felony conviction, and the court dismissed the count that charged resisting arrest.

On or about December 8, 1995, defendant received the probation officer's report, which contained a statement referring to section 1170.12, subdivision (a)(5). ² This statutory provision -- commonly known as the "4/5 Rule" -- provides that "[t]he total amount of credits awarded [under the statutes governing good time and work time credit] shall not exceed one-fifth of the total term of imprisonment imposed...." (Ibid.) Thus, each defendant sentenced under the Three Strikes law generally must serve at least four-fifths of his or her sentence prior to becoming eligible for parole.

On February 13, 1996, defendant moved to withdraw his guilty plea, contending that he had been unaware of the 4/5 Rule. His declaration explained that when he entered his guilty plea, "... I understood this conviction carried a possible sentence of 16 months, two years, or three years in State Prison and further that whatever sentence I received would be doubled. I discussed these matters with my attorney, Mr. Max Ruffcorn, before the sentencing. I was not advised, by Mr. Ruffcorn nor was I aware, that in addition to the sentence [ ] being doubled, due to a prior conviction for violation of Penal Code section 211, I would also have to serve 80 percent of any sentence imposed. It was my understanding I would receive 50 percent credit for good time and work time and I expected if I received the upper term of six years I would only have to serve three [years]. It was not until after I entered the plea and was returned to the jail that I learned, upon receipt of the probation report, the sentence would be subject to only a 20 percent reduction for good time and work time. [p] Had I been aware the sentence imposed [ ] was subject only to a 20 percent reduction I would not have entered my plea." (Italics in the original.)

On February 16, 1996, the court heard defendant's motion to withdraw his plea. Defendant testified that his attorney advised him that he faced a three-year sentence for the possession charge and an additional two years for his prior felony, for a total of five years. According to defendant, "nothing was mentioned about the 80 percent" requirement contained in the Three Strikes law; instead, defendant believed he would receive "half-time" credits -- i.e., a one-day reduction in the length of his sentence for each day of incarceration actually served. Defendant reiterated that he would not have entered a guilty plea had he known that he would be required to serve at least 80 percent of his sentence. The trial court denied defendant's motion. ³

Shortly thereafter, the court sentenced defendant to six years in prison, representing the upper term for the possession charge, doubled, pursuant to section 1170.12, subdivision (c)(1). Defendant filed a timely notice of appeal and obtained a certificate of probable cause (§ 1237.5).

The Court of Appeal reversed the trial court's denial of defendant's motion to withdraw the plea, concluding that the credit limitation contained within the Three Strikes law "falls within the Boykin-Tahl-Bunnell requirement of advisement as to sentencing range and other direct consequences of a guilty plea," thus requiring the trial court to advise defendant that, in consequence of his plea, he would serve a minimum of four-fifths of the sentence before becoming eligible for parole. ⁴ We thereafter granted the People's petition for review.

II.

A.

In considering the parties' respective positions regarding the trial court's responsibility to provide parole eligibility advisements upon the entry of defendant's guilty plea, it is instructive briefly to consider prior pronouncements of the United States Supreme Court and of this court, upon which the Court of Appeal ostensibly relied. As the following discussion makes clear, the question whether the trial court was required to advise defendant that he would be ineligible for parole until he had served four-fifths of his prison term, turns on whether the 4/5 Rule properly should be characterized as a "direct" or "collateral" consequence of defendant's plea, within the meaning of the controlling decisions.

In Boykin, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court held that "[i]t was error ... for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." (Id. at p. 242, 89 S.Ct. 1709.) "What is at stake for an accused facing death or imprisonment 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." (Id. at pp. 243-244, 89 S.Ct. 1709; see also Brady v. United States (1970) 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 [" ' "[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats ..., misrepresentation ...," ' " or improper promises.].)

In Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, this court held that in order to comply with the requirements of Boykin, in all cases in which the trial court accepts a guilty plea: "[T]he record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea. Each must be enumerated and responses elicited from the person of the defendant." (Id. at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449, italics in the original.)

In Bunnell, supra, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, we elaborated: "In all guilty plea and submission cases the defendant shall be advised of the direct consequences of the conviction such as...