IN RE: Elvry STONEHAM on Habeas Corpus.

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Court of Appeal, First District, Division 3, California.

IN RE: Elvry STONEHAM on Habeas Corpus.

Cr. 22988.

Decided: April 20, 1982

Quin Denvir, State Public Defender, Neil Rosenbaum, Deputy State Public Defender, San Francisco, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Robert R. Granucci, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for respondent.

This petition seeks to set aside a guilty plea on the ground that when defense counsel advised petitioner that his Indeterminate Sentence Law (ISL) term would be computed to six years under the Determinate Sentence Law (DSL) he did not advise him that he might be subjected to a “serious offender hearing” (Pen.Code, § 1170.2, subd. (b)) to extend his term.   We conclude that petitioner did not meet his burden of presenting clear and convincing evidence that counsel misadvised him.   Therefore, we deny the petition.

This case has a complex procedural history, including an order to show cause issued by the California Supreme Court returnable before the superior court and a peremptory writ of mandate by this division compelling the superior court to hold an evidentiary hearing.   That procedural history need not be recounted.   For our purposes, it is enough to explain that on April 17 and May 1, 1981, the trial court held an evidentiary hearing and denied the relief requested by petitioner.   Petitioner urges us to grant relief on the same record.

At the hearing held April 17 and May 1, 1981, petitioner's trial attorney LaRue Grim testified that on July 5, 1977, the date petitioner's case was set for trial, he met with the deputy district attorney and Judge Karesh in chambers and that several possible plea bargains were discussed.   Mr. Grim calculated six years for the DSL conversion of the bargain eventually agreed upon.   Grim thought he had mentioned the serious offender hearing possibility to Judge Karesh in chambers.   However, Grim did not think a serious offender hearing would be held for petitioner because he felt the Community Release Board (CRB) would be restricted to relying upon crimes mentioned in the abstract of judgment and because he thought the serious offender proceedings “applied to someone much more seriously involved, and much more serious offender than I perceived Mr. Stoneham to be.”

During his plea negotiations, Grim went to petitioner's holding cell to advise petitioner of the offer and the consequences thereof.   He advised petitioner that he understood that his ISL term would be recomputed to six years under the DSL and that with good behavior he could be released in four years.   Asked on direct if he mentioned the possibility of a serious offender hearing, Grim answered:  “I don't think so, but I am not sure.   I don't think so.   I didn't think it applied to him, as I recall.”   Had the judge or deputy district attorney advised him that the CRB would calculate the term at more than six years Grim probably would not have allowed petitioner to plead guilty on the strength of the advice he had thus far given.

During cross-examination, Grim testified that in July of 1977 if he thought a defendant would be subjected to serious offender proceedings, he would discuss that possibility with him.   However, he felt that any discussion was tentative because there was no authoritative decision concerning serious offender hearings.

At the time of the plea change, Grim was not aware of all the information in petitioner's probation report (sex offenses going back to 1958 when he was a child, commitment to Atascadero, other convictions).   He learned of these facts sometime between plea and sentence, but he did not suggest a motion to withdraw the plea.   In light of the probation report, the negotiated disposition looked even better to Grim than it had when the plea was made.

At the close of cross-examination, Grim explained that he felt badly about his advice to petitioner:  “I feel that when the case was being settled and discussed, negotiated, that I looked at 1170.2(a) and (b), and I tried to understand it and give it application in the broad context of the changing law at the time, and my understanding of due process requirements and so forth.   And what I told him was, that he probably, I felt fairly sure of it, would do a certain amount of time under the conversion process in state prison, and I didn't think that there would be a serious offender's hearing, that it would be increased, and I think that he relied on that, and I was wrong, and I am sorry about that, and I feel that to the extent that my mistake has had consequences deterimental to him, I regret that, and I would like to correct it.”

On redirect, however, Grim was asked if on July 5, 1977 he thought the serious offender section applied to petitioner, and he said “No.”   He was asked if “at any time prior to entry of his plea [Grim had advised] Mr. Stoneham that after he got to prison he would be subject to an increased sentence under the provisions of 1170.2(b),” and he answered “no.”

Petitioner testified at the hearing that Mr. Grim told him he would receive a six-year term for the crimes he was to admit and that he relied on that advice.   Nothing was said about the possibility of a serious offender hearing, and he knew nothing of such hearings himself.   He would not have pleaded guilty had he known of the possibility of an enhancement to his six-year sentence.

Petitioner argues that the record shows clearly that his plea of guilty was not knowingly and intelligently made because he was never advised about the possibility of a serious offender hearing.   The Attorney General argues both that the proper advice was given and that even if there were misadvice it would not invalidate the plea.

 Before resolving this conflict, we must define our role in the review process.   Had petitioner succeeded in convincing the trial court that his plea should be set aside, and had the People appealed the trial court's decision, this court would have reviewed the decision under the substantial evidence test applicable to appeals (Pen.Code, § 1506;  6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 209, p. 4200).   However, where an order to show cause issues returnable before the superior court and that court denies habeas corpus relief, the defendant is entitled to apply to a reviewing court for the writ and the reviewing court will make an independent examination and appraisal of the evidence that was taken in the superior court (In re Hochberg (1970) 2 Cal.3d 870, 873–874, fn. 2, 87 Cal.Rptr. 681, 471 P.2d 1).   Though the examination is independent, the trial judge's determinations of fact are entitled to “some weight” (In re Reyna (1976) 55 Cal.App.3d 288, 294, 126 Cal.Rptr. 138) or perhaps to “great weight” with respect to questions depending upon the credibility of witnesses (In re Wright (1978) 78 Cal.App.3d 788, 801, 144 Cal.Rptr. 535).

 In any habeas corpus proceeding, the burden of proof is upon the petitioning party (In re Lawler (1979) 23 Cal.3d 190, 195, 151 Cal.Rptr. 833, 588 P.2d 1257).   When the petitioner is attempting to set aside a plea bargain, the burden is onerous because it requires that good cause be shown by “clear and convincing evidence.”  (Cf. People v. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal.Rptr. 242;  People v. Urfer (1979) (94 Cal.App.3d 887, 892, 156 Cal.Rptr. 682.) 1

We need not address the Attorney General's contention that even if misadvised, petitioner is not entitled to withdraw his plea, because we conclude that petitioner has not met his burden of proof that he was misadvised.   We note, however, that the California Supreme Court's issuance of an order to show cause returnable in this court with citation to Brady v. United States (1970) 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, and McMann v. Richardson (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, suggests that the high court disagrees with the Attorney General's interpretation of the law (See In re Hochberg, supra, 2 Cal.3d 870, 875–876, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1).

 Turning to the testimony presented in the proceedings below, we note that petitioner testified clearly and succinctly that he was never advised about the possibility of a serious offender hearing, that he was not independently aware of such possibility and that he would not have pleaded guilty had he known of the possibility of an enhancement to his expected term of six years.   However, a trial or appellate court is entitled to be skeptical of a defendant's own testimony concerning the motivations for his guilty plea, particularly when the testimony is given after the passage of time which may have hampered the prosecution's ability to try the defendant on the original charges.2  (See generally Blackledge v. Allison (1977) 431 U.S. 63, 71–72, 97 S.Ct. 1621, 1627–28, 52 L.Ed.2d 736;  People v. Caruso (1959) 174 Cal.App.2d 624, 641–642, 345 P.2d 282.)

In a case such as this the most significant testimony is that of the defense counsel, whose testimony may either harm a former client's case or cast doubt upon counsel's own competence.   In examining Mr. Grim's testimony we are struck by several things:  (1) he clearly was aware of the possibility of a serious offender hearing, (2) he thought he had mentioned the possibility to Judge Karesh in chambers, (3) he had a practice of discussing the serious offender possibility with any defendant he thought would be subjected to such proceedings, (4) he had examined the law closely enough to reach some tentative conclusions about the circumstances under which serious offender proceedings might be instituted, (5) his testimony was unequivocal only when asked if he had advised petitioner he “would be subjected to an increased sentence,” (6) when asked on direct if he had mentioned the “possibility” of a serious offender hearing he was unsure, and in his most expansive discussion on cross-examination he testified that he told petitioner that he did not think there would be a serious offender hearing.

We are struck also by the care exercised by Mr. Grim in assuring that sex crimes would not be included in his client's guilty plea and in securing an agreement that the trial judge would not send an unfavorable letter concerning petitioner to the state prison authorities.   The record shows that Mr. Grim was operating at a high level of competence throughout the proceedings.

 Of course, competent counsel may misread the law or misjudge its applicability to his client.   He or she may also fail to advise a client of possible consequences of a plea.   However, the evidence that Mr. Grim did fail to advise petitioner in this case is unclear in the case of Mr. Grim's testimony 3 and unconvincing when the entire record is considered.

 The order to show cause is discharged and the petition for writ of habeas corpus is denied.   Petitioner's request for release on his own recognizance or reduction in bail pending final determination of the petition is denied.

FOOTNOTES

1.   We acknowledge that the standard of “clear and convincing” evidence has been articulated in connection with a prejudgment motion to withdraw a guilty plea (Pen.Code, § 1018).   Petitioner argues that the standard of proof to be applied here is the general requirement that the petitioner prove his habeas corpus assertions by a preponderance of the evidence (In re De La Roi (1946) 28 Cal.2d 264, 269, 169 P.2d 363).   We conclude, however, that where a petition for writ of habeas corpus seeks post-judgment vacation of a guilty plea as involuntarily or unintelligently entered, the evidence to support the claim must be both clear and convincing.   We can see no rational basis for applying a less stringent standard to a post-judgment attack than is applied to a prejudgment motion.

2.   This consideration is balanced somewhat by recognition of the fact that petitioner's attack upon his plea began shortly after his term was extended and of the fact that at this late date petitioner has less to gain from the setting aside of his plea.

3.   Which actually suggests more strongly that Mr. Grim did advise his client of the possibility of a serious offender hearing but guessed wrongly that his client would not be subjected to such hearing.

 WHITE, Presiding Justice.

FEINBERG and BARRY–DEAL, JJ., concur.

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