People v. Brown

• Decision Date: 13 March 1986
• Citation: 223 Cal.Rptr. 66,177 Cal.App.3d 537
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William BROWN, Defendant and Appellant. Crim. 13658. . As Modified
• Court: California Court of Appeals Court of Appeals

Page 66

223 Cal.Rptr. 66

177 Cal.App.3d 537

The PEOPLE of the State of California, Plaintiff and Respondent, v. William BROWN, Defendant and Appellant.

Crim. 13658.

Court of Appeal, Third District, California.

As Modified March 13, 1986.

Review Denied May 29, 1986.

Feb. 11, 1986.

John K. Van de Kamp, Atty. Gen., James T. McNally, Supervising Deputy Atty. Gen. and Judy Kaida, Deputy Atty. Gen., for plaintiff and respondent.

Frank O. Bell, Jr., State Public Defender, and Julia Cline Newcomb, Deputy State Public Defender, for defendant and appellant.

GILBERT, Associate Justice. ^*

Defendant was convicted after jury trial of burglary, forcible rape, and forcible oral copulation and of having used a deadly weapon in commission of those crimes. He was sentenced to prison for 6 years. ¹ The offenses involved entry into the house of defendant's former spouse and forcing her to engage in sexual acts at knife point. Preliminary plea negotiations with the district attorney resulted in an "offer" of a plea of guilty to a single count of violating Penal Code section 243.4, ² sexual battery, and dismissal of the remaining charges. Although interested in the offer, defendant sought a promise that he would not receive a state prison commitment. The prosecution would not agree. Both sides felt a "pre-plea" report of the probation officer, concerning circumstances of the offense and of defendant's background, would assist in a resolution of the case. ³ A report was ordered by the court and prepared. Neither the court nor the parties informed the probation officer of the proposed plea agreement and the report was prepared on the assumption of conviction on all of the charged offenses. ⁴ Conviction on those charges made defendant ineligible for probation. (See §§ 462, 1203.06, subd. (a)(1)(vi), and 1203.065.) Consequently, the pre-plea report recommended a state prison commitment upon conviction. When defense counsel received the report and saw the error, he did nothing to correct it. Negotiations broke down and the case proceeded to trial, conviction, and a six-year prison term.

We consider here defendant's sole contention on appeal: That counsel's failure to seek a corrected pre-plea report constitutes inadequate representation requiring reversal of his conviction. Consideration of the obligations of counsel in such pretrial negotiations takes us through legal waters largely uncharted in California. Our review of the facts, of the nature of plea negotiations and their essential role in the resolution of most criminal cases, and our review of counsel's obligations in that process leads us to conclude that defendant did not receive adequate representation at a critical stage of the proceedings against him. We find, however, that defendant has failed to establish the prejudice necessary for a reversal of his conviction. Consequently, we shall affirm.

I. THE FACTS.

The facts supporting defendant's conviction are not of particular concern here. To a degree, however, they form an important context for the plea negotiations which do concern us. We therefore briefly mention the facts of the offenses. Defendant and the victim were married in 1970. The couple had four children. The parties divorced in 1981. After the divorce, defendant maintained contact with the children, who remained in the custody of their mother, the victim. After the divorce and about a year before the offense, defendant and the victim engaged in consensual sexual relations.

The victim testified that in the early morning hours of March 6, 1983, she awoke to find defendant, armed with a knife, in her bedroom. She was ordered to submit to the charged sexual acts by defendant, who kept the knife in his possession for the entire three hours she endured his attacks.

Defendant did not deny that the acts took place. His testimony in defense was that the acts were consensual and consistent with the prior occasions of post-separation consensual sex. Defendant denied threatening the victim with a knife, but admitted having a folded pocketknife in his possession which he may have used to secure the bedroom door, as he had also done innocently in the past.

Defendant was arrested and charged with the offenses. He was represented by the Sacramento County Public Defender in the municipal court, where he was held to answer after a preliminary examination. He was arraigned in the Superior Court on May 6, 1983, where the public defender was relieved and private counsel, Bill C. Asakawa (Asakawa), was appointed to represent him. After a continued arraignment hearing, trial was set for June 6, 1983. A "plea negotiation conference" was set for May 27, and a trial status conference for June 6th. With the agreement of the defendant and the district attorney, the June 6 trial date was continued to July 6, with a further status conference on July 5.

In late June, Asakawa had a series of discussions with the assigned prosecutor, Jeffrey Rose (Rose). Rose proposed defendant enter a plea of guilty to a single count of section 243.4, sexual battery. Prior offers from the district attorney had always involved a plea to one of the charged violent sexual offenses. Asakawa indicated defendant's interest in the plea offer but, in accordance with defendant's desires, wanted an assurance that defendant would not be committed to prison at the outset, but would receive probation with not more than one year in the county jail as a condition. The parties were unable to agree on disposition, but both sides felt the case could be resolved. Rose suggested that a pre-plea report be prepared on the basis of a plea to section 243.4 and indicated that, if the report recommended probation and the judge were inclined to grant it, he (Rose) would not recommend, but would not oppose, the disposition. ⁵ These negotiations were brought to the court's attention in chambers, and off the record, on the date set for trial, July 6. When the case was heard in open court, trial was continued on agreement of both sides and a referral was made to the probation department for preparation of a pre-plea report. Both counsel affirmed to the court their belief that a pre-plea report "might be fruitful in the resolution of this case." The report was ordered for August 4, also to be the date to set a trial, if necessary. Defendant's motion for reduction of bail from $15,000 to $5,000 was granted with the concurrence of the district attorney.

The specific premise of the pre-plea report referral, a plea to section 243.4, was not mentioned in the reported court proceedings and is not reflected in the clerk's minutes. Neither the court, defendant's counsel, nor the prosecutor informed the probation department of the anticipated plea to section 243.4. As a result, the report assumed "pleas" to all of the charged offenses. The probation department thus correctly assumed that defendant was legally ineligible for probation, and recommended a state prison sentence.

The completed report was received by Asakawa a few days before the August 4, hearing date. He noted the erroneous premise of the report, but had apparently forgotten Rose's offer to "submit" on a favorable report. He believed, however, that he could still obtain a plea agreement to section 243.4 with a no state prison promise because of what he felt were the mitigating factors in the case. He viewed the fact that the defendant had no previous criminal record, the credibility problems posed by the prior consensual sex acts and some expressed reluctance by the prosecution to have the children who were in the house at the time of the event testify as a solid basis for further negotiations. ⁶ In any event, Asakawa made no effort to get the report corrected or a new report prepared.

After the report was received, Asakawa did speak further with Rose. Rose was still offering a plea to sexual battery, but felt a three year prison term was appropriate. Asakawa pushed Rose for a one year cap. Rose also still felt the case could be resolved and offered to speak with his superiors about the proposed disposition. The reply was not favorable and Rose held to the three year term position. Negotiations broke off and the case proceeded to trial.

The probation officer who prepared the pre-plea report indicated that he was unaware of the proposed plea to section 243.4. Had he been, or if the case had been referred back to him again, he would have evaluated defendant for probation. As it was, he did not.

The testimony and declaration of an experienced criminal defense attorney was also presented at defendant's new trial motion. This testimony established that pre-plea reports are useful to resolve difficult criminal cases. Generally, where agreement is reached on a plea, there is also agreement to use the pre-plea report as the pre-sentence report to avoid an additional referral to the probation department. (See § 1203, subd. (b).) The expert opined that Asakawa's failure to pursue an accurate or corrected report and his failure to supply favorable information about the defendant to the probation officer was inadequate representation and that a result more favorable to defendant would have occurred had the report been prepared on the proper basis.

II. DISCUSSION

We pause briefly to restate the basic obligations of counsel to criminal defendants. "To render reasonably competent assistance, an attorney in a criminal case must perform certain basic duties. Generally, the Sixth Amendment and article I, section 15 (of the California Constitution) require counsel's ' "diligence and active participation in the full and effective preparation of his client's case." [Citation.] Criminal defense attorneys have a " 'duty to investigate carefully all defenses of fact and of law that may be available to the defendant....' " [Citation.] This obligation includes conferring with the client 'without undue delay and as often as necessary ... to elicit matters of defense....' [Citation.] 'Co...