People v. McCary

• Citation: 212 Cal.Rptr. 114,166 Cal.App.3d 1
• Decision Date: 25 March 1985
• Docket Number: Cr. 13148
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard F. McCARY, Defendant and Appellant.

Page 114

212 Cal.Rptr. 114

166 Cal.App.3d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard F. McCARY, Defendant and Appellant.

Cr. 13148.

Court of Appeal, Third District, California.

March 25, 1985.

Rehearing Denied April 23, 1985.

[166 Cal.App.3d 5] William P. Buchanan, Arcata, under appointment by the Court of Appeal for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Michael T. Garcia and Wanda Hill Rouzan, Deputy Attys. Gen., for plaintiff and respondent.

MERING, Associate Justice. ^*

Defendant appeals from a judgment sentencing him to three years in state prison

                after the trial court denied his motion to withdraw pleas of guilty to two counts of committing a lewd and lascivious act upon a child under 14 years of age (Pen.Code, § 288, subd.  (a)). 1  We conclude defendant was denied effective assistance of counsel in entering his pleas.  We shall reverse and remand the case to the trial court to provide defendant an opportunity to withdraw his pleas
                

FACTS

On December 22, 1982, an information was filed alleging that between October 18, 1981, and November 11, 1981, defendant Richard McCary committed an act of sodomy on a child under 14 years of age and more than ten years younger than him ( § 286, subd. (c)); and three acts of lewd and lascivious conduct upon a child under 14 years of age ( § 288, subd. (a)). In addition, defendant was charged with failing to register as a prior sex offender ( § 290) and with a prior serious felony conviction for lewd and lascivious conduct ( § 667, subd. (a)). In the prior conviction, defendant had pleaded guilty to three counts of lewd and lascivious conduct and was placed on three-years probation.

On July 8, 1983, the date trial was to commence, defendant pleaded guilty to two counts of committing a lewd and lascivious act upon a child under 14 years of age ( § 288, subd. (a)). These pleas were entered pursuant to a plea negotiation under the terms of which the two other felony charges and the section 290 charge were to be dismissed, as well as the prior serious felony enhancement. The reasons stated on the record for the dismissals were the interests of the victim ( § 288, subd. (c)) and "evidentiary problems" with respect to the sodomy charge.

In this regard, the prosecutor explained that the doctor who examined the victim was of the opinion that a sodomy did not take place. At the plea hearing the defendant acknowledged his counsel had explained this to him. During these proceedings no question was raised as to the validity of the serious felony enhancement.

On August 5, 1983, defendant filed a motion to withdraw his guilty pleas. Although defendant was still represented by counsel, he prepared and argued the motion in pro per, his counsel declining to participate. In support of the motion, defendant declared he was under extreme emotional distress when he entered his pleas and did so under the belief he would be convicted of all the charges against him. He stated he was not previously aware of medical evidence indicating the alleged victim was not sodomized. He declared he was under psychological care due to the breakup of his family and a business loss; he was unable to keep a job because of several pending legal battles; he had resumed heavy drinking the week before he entered his pleas; and he was unable to sleep the night before because of an encounter with his ex-wife. Defendant alleged the district attorney's office falsely charged him.

In an amendment to the motion, defendant filed a lengthy statement alleging that one Reverend Charles Combs conspired with the victim's mother and the district attorney's office to falsely charge defendant, in furtherance of Reverend Combs' "insane determination to silence and imprison me." He further elaborated on his condition at the time he entered his pleas, contending "I was broke, hungry and emotionally exhausted, and I gave in." He also contended that only after he entered his pleas was he informed of the medical evidence indicating no sodomy was committed on the victim. Defendant did not raise the issue of the validity of the serious felony enhancement.

The trial court heard the motion on August 16 and denied it. The court then sentenced defendant to three years in state prison for each of the two counts to which he pleaded guilty, the sentences to run concurrently. Defendant appealed from the judgment to challenge the court's denial of his motion. He did not obtain a

certificate of probable cause. However, he moved this court for relief from failure to obtain a certificate of probable cause and we granted the motion. Thereafter, defendant obtained a certificate.

DISCUSSION

Defendant makes several contentions with respect to whether the trial court abused its discretion in denying his motion to withdraw the pleas. However, we shall not address these contentions, for after examining the record we conclude defendant was denied effective assistance of counsel in entering his pleas and for that reason is entitled to an opportunity to withdraw his pleas if he so desires. ²

We begin with the established principle that a defendant "is entitled to representation at every step of the proceedings, including the aid of counsel to enable an intelligent decision as to his plea." (People v. Mattson (1959) 51 Cal.2d 777, 790, fn. 5, 336 P.2d 937, see also People v. Chesser (1947) 29 Cal.2d 815, 820-821, 178 P.2d 761; People v. Avilez (1948) 86 Cal.App.2d 289, 296, 194 P.2d 829.) Where a defendant has been denied the effective assistance of counsel in entering a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so desires. (People v. Chesser, supra, 29 Cal.2d at p. 825, 178 P.2d 761; People v. Avilez, supra, 86 Cal.App.2d at p. 299, 194 P.2d 829.)

In the present case, defendant was charged with a serious felony enhancement under section 667. Had the charge been found true, he would have faced an additional sentence of five years, thereby increasing his minimum possible prison term from three years to eight years. ³ However, the present crimes were alleged to have occurred in 1981. As part of Proposition 8, adopted on June 8, 1982, section 667 is inapplicable to offenses occurring prior to that date and thus defendant was improperly charged with the serious felony enhancement. (People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.) ⁴ It is apparent from the record that defendant's counsel was neither aware of this fact nor did he inform defendant of this fact in the course of plea negotiations. The enhancement was simply dismissed as part of the plea bargain. The question before us is whether this constituted ineffective assistance of counsel. We conclude it did.

As a threshold requirement, it must be shown "counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates." (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) Effective and competent representation requires "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.] ... 'Counsel should promptly advise his client of his rights and take all actions necessary to preserve them....' " (Id., at pp. 424-425, 152 Cal.Rptr. 732, 590 P.2d 859.)

With respect to counsel's duties in the entry of a guilty plea, " 'It is his [counsel's] task to investigate carefully all defenses of fact and of law that may be available to the defendant and confer with him about them before he permits his client to foreclose all possibility of defense and submit to conviction without a hearing by pleading guilty.' " (People v. Mattson, supra, 51 Cal.2d at p. 791, 336 P.2d 937, quoting People v. Avilez, supra, 86 Cal.App.2d at p. 296, 194 P.2d 829.) Counsel "is expected ... to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques." (Smith v. Lewis (1975) 13 Cal.3d 349, 358, 118 Cal.Rptr. 621, 530 P.2d 589.)

Defendant's attorney clearly did not meet these standards in failing to ascertain defendant was not legally subject to the charged enhancement and to inform him of this fact in plea negotiations. Although People v. Smith, supra, was decided after defendant entered his plea, ⁵ it did not take Smith to inform counsel section 667 could not legally be applied to defendant. It is a well-established and commonly known principle of constitutional law that the prohibition against ex post facto laws forbids the application of a law " 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' " (Weaver v. Graham (1981) 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17.) ⁶ Although the court in Smith had some doubt as to the applicability of the ex post facto constraint to some parts of Proposition 8, it had no doubt the constraint applied to section 667. (People v. Smith, supra, 34 Cal.3d at p. 261, 193 Cal.Rptr. 692, 667 P.2d 149.) If this principle is not considered common knowledge among attorneys, it would be readily discoverable through standard research techniques. Accordingly, defendant's counsel should have known the enhancement was invalid.

That defendant should have been informed of this fact in plea negotiations is without doubt. Counsel has a duty to confer with his client about all available defenses of fact and of law before permitting him to plead guilty. (People v. Mattson, supra, 51 Cal.2d at p. 791, 336 P.2d 937.) To be valid, guilty pleas must be based upon a defendant's full awareness of the...