PEOPLE v. BENNETT

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. John Carl BENNETT, Defendant and Appellant. IN RE: John Carl BENNETT on Habeas Corpus.

Nos. F009682, F008035.

Decided: June 30, 1988

Frank O. Bell, State Public Defender Jeremy E. Friedlander, Roy M. Dahlberg and Alberto Y. Balingit, Deputy State Public Defenders, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael J. Weinberger and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

On April 30, 1986, an information was filed in the Kern County Superior Court charging defendant/appellant/petitioner (defendant) John Carl Bennett with forcible rape.  (Pen.Code, § 261, subd. (2).)

Prior to trial, defendant was offered a plea bargain to one count of sexual battery (Pen.Code, § 243.4) with a recommendation of no more than one year in county jail.   Defendant maintains that on the incorrect advice of counsel that he could receive probation even if convicted of forcible rape, he rejected the plea bargain.   After a jury trial, defendant was convicted of forcible rape and sentenced to a three-year term in state prison.

Pending the appeal, defendant filed a writ of habeas corpus with this court in the first instance, which has been consolidated with the appeal for disposition.   In the interest of orderly disposition of the two matters, they will be discussed separately.

FACTS

Prior to the incident in question, Mary D. had known defendant for approximately one year.   Although they were friends, their relationship was not an intimate one.   Mary D. testified that on March 15, 1985, she accepted defendant's invitation to go out for dinner.   Mary drove to defendant's apartment and was invited inside.   After Mary entered defendant's apartment, he locked the door and moved toward his bed.   He motioned for her to come over to him, saying that he wanted to tell her something.   After initially refusing, Mary took a few steps forward, stopped and said, “No, you can tell me right here, right where I'm at.”   Becoming frightened of defendant, Mary backed toward the door and fell.   Defendant grabbed her and pulled her over to his bed.   He pushed her onto the bed and sat on her.   Defendant pulled off Mary's clothes saying, “I've been wanting to do this for a long time and you're not going to stop me.”   He pointed to a gun, which was by the wall, and said he would use it if necessary.   Defendant inserted his penis in Mary's vagina and completed an act of sexual intercourse against her will.   Mary did not struggle because she was afraid defendant would become more violent.

When he finished, defendant gave Mary her clothes, she dressed, and he drove her home.   Mary immediately called a friend and the police were called.   The doctor who examined Mary concluded his findings were consistent with either rape or consensual intercourse.

DEFENSE

Defendant testified in his own behalf and related a markedly different account of the incident.   He claimed that, after initially resisting, Mary consented to sexual intercourse.   Defendant testified that Mary's attitude changed after intercourse and he knew something was wrong.

Defendant admitted telling the police he had intercourse with Mary but claimed he did not think it was rape.   He also told the police, “I guess I did something wrong, I must have done something wrong.”   He denied forcing Mary to have intercourse with him and denied pushing her or sitting on her.

I ***

II

The Habeas Petition

In his habeas petition, defendant contends he was denied effective assistance of counsel because he rejected a favorable plea bargain in reliance on counsel's mistaken advice that he would be eligible for probation even if convicted of forcible rape.  (Pen.Code, § 261, subd. (2).) 3  The People confirm defendant was offered a plea bargain to one count of sexual battery (Pen.Code, § 243.4) with a recommendation of no more than one year's incarceration.   After a three-day jury trial, defendant was convicted of forcible rape, denied probation and sentenced to three years in prison.   He seeks reversal of his conviction and reinstatement of the proposed plea bargain.

In support of his petition, defendant submits his own declaration and that of trial counsel.   Counsel's declaration states that she mistakenly advised defendant he would be eligible for probation even if convicted of forcible rape and that she did not learn until after trial that a conviction of this section carries a mandatory prison sentence.   She advised “that he had strong evidence for probation” even if convicted and that if he did not get probation he could get a three-year sentence.   As to the strengths and weaknesses of his case, counsel advised that the victim “was a strong and sympathetic witness,” and that although the case against him was strong, it was not overwhelming.   She asserts that had she known he would be statutorily ineligible for probation if convicted of rape, she “would have strongly recommended to Mr. Bennett that he accept the plea bargain.”

In his declaration, defendant states counsel advised he could get probation if he pleaded to sexual battery or if he were convicted of rape.   She did however warn him he could be sentenced to state prison if convicted.   He claims that had he been properly advised as to the sentencing consequences of a rape conviction, he would have accepted the plea bargain.

III

Did Counsel's Advice Constitute a Deprivation of Defendant's Sixth Amendment Right to Effective Assistance of Counsel?1. The Test for Prejudicial Ineffective Assistance of Counsel.

The issues raised by defendant query the extent to which the right to effective assistance of counsel enumerated in the Sixth Amendment to the United States Constitution encompasses and protects a defendant from error by his or her attorney.   Is every error by counsel of constitutional magnitude or consequence?   We conclude the answer is no.

The California Supreme Court addressed the issue of ineffective assistance of counsel in People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal.Rptr. 404, 729 P.2d 839, and stated:

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.  [Citations.]   The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result.  [Citations.]

“Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.  [Citations.]   Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ ”  (Emphasis in original.)

Ledesma adopted the two-prong test of Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 in evaluating whether counsel's assistance was so defective as to require reversal of a conviction (People v. Ledesma, supra, 43 Cal.3d at pp. 217–219, 233 Cal.Rptr. 404, 729 P.2d 839).   As the court in Strickland stated:

“First, the defendant must show that counsel's performance was deficient․   Second, the defendant must show that the deficient performance prejudiced the defense․   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  (Strickland, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064.)

In meeting the first prong of the Strickland test, the movant must establish serious attorney error.  “To show such error, it must be established that the assistance rendered by counsel was constitutionally deficient․”   (Nix v. Whiteside (1986) 475 U.S. 157, 106 S.Ct. 988, 993, 89 L.Ed.2d 123.)   A showing of constitutional deficiency is made if the movant establishes “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  (Strickland v. Washington, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064;  Nix v. Whiteside, supra, 475 U.S. at pp. –––– – ––––, 106 S.Ct. at pp. 993–994.)

“A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.”  (Strickland, supra, 466 U.S. at p. 690, 104 S.Ct. at p. 2066.)

Assuming a defendant establishes counsel's error falls within the first prong of Strickland, the question remains whether there is prejudice warranting a remedy within the criminal justice system.  “In addition to showing that counsel's performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.”  (Ledesma, supra, 43 Cal.3d, at p. 217, 233 Cal.Rptr. 404, 729 P.2d 839.)   In order to demonstrate prejudice, there must be a “showing that counsel's errors were so serious as to deprive a defendant of a fair trial, a trial whose result is reliable.”  (Strickland, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064;  see Ledesma, supra, 43 Cal.3d at p. 217, 233 Cal.Rptr. 404, 729 P.2d 839.)

Strickland recognizes, as does Ledesma, that the purpose of the Sixth Amendment is to ensure the defendant a fair trial.

“The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in [those cases] presenting claims of ‘actual ineffectiveness.’   In giving meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide.   The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  (Strickland, supra, 466 U.S. at p. 686, 104 S.Ct. at 2064.)

 The right to effective assistance of counsel, therefore, has as its focus and purpose the protection of the fundamental right to a fair trial.   (Id. 466 U.S. at p. 684, 104 S.Ct. at p. 2062.)   Thus, in order to ascertain whether the error is of constitutional dimension within the meaning of Strickland, we must first examine what constitutes a fair trial.

“․ a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.”  (Id. at p. 685, 104 S.Ct. at 2063.)

Obviously, within this definition, “trial” does not restrict itself to the formal proceeding that concludes in the determination of guilt or innocence.   It refers to the adjudication of issues of fact and law that collectively result in the determination of guilt or innocence whether they take place in one or many proceedings relating to the charge against the accused.

“Blackstone defines ‘trial’ to be the examination of the matters of fact in issue.  [Citation.]  ․ ‘Trial is a common law term, and is commonly used to denote that step in an action by which issues or questions of fact are decided.   But the word has often a broader significance, as referring to that final examination and decision of matter of law as well as fact, for which every antecedent step is a preparation, which we commonly denominate ‘the trial.’ ”  (Carpenter v. Winn (1911) 221 U.S. 533, 538–539 [31 S.Ct. 683, 685, 55 L.Ed. 842].)

Fundamentally, in the fair trial analysis, we are concerned with confidence in the result of the adjudication.   The proceeding becomes unreliable “because of a breakdown in the adversarial process that our system counts on to produce just results.”  (Strickland, supra, 466 U.S. at p. 696, 104 S.Ct. at p. 2069.)   In an evaluation of guilt or innocence we are not so much concerned with whether there are technical errors, but rather whether the errors affect the reliability of the findings of fact or law tested in the crucible of the adversary process.

“When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred.   But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.”   (United States v. Cronic (1983) 466 U.S. 648, 656–657, 104 S.Ct. 2039, 2045–46, 80 L.Ed.2d 657, fns. omitted.)

A criminal proceeding is not and should not be a game wherein consequences are subsumed by technical rules that have nothing to do with the ultimate objective of determining guilt or innocence.   An ineffective-assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable.  (Strickland, supra, 466 U.S. at p. 696, 104 S.Ct. at p. 2069.)

The cornerstone of the adversary system is that loyal advocates on both sides will “best promote the ultimate objective that the guilty be convicted and the innocent go free.”  (Herring v. New York (1974) 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593.)  “It is that ‘very premise’ that underlies and gives meaning to the Sixth Amendment.   It ‘is meant to assure fairness in the adversary criminal process.’ ”  (United States v. Cronic, supra, 466 U.S. at pp. 655–656, 104 S.Ct. at pp. 2045–46;  United States v. Morrison (1981) 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564.)

 However, in assessing the consequence of the error of counsel, that it might have had some effect on the outcome of the proceeding is not determinative of prejudice.

“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.   Virtually every act or omission of counsel would meet that test, [citation], and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.”  (Strickland, supra, 466 U.S. at p. 693, 104 S.Ct. at p. 2067.)

Rather, the focus must be the degree to which the error might have influenced the ultimate result.

“ ‘․ The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”  (Ledesma, supra, 43 Cal.3d at pp. 217–218, 223 Cal.Rptr. 404, 729 P.2d 839, quoting Strickland, supra, 466 U.S. at pp. 693–694, 104 S.Ct. at pp. 2068.)

 Therefore, under the second facet of the Strickland test, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of the criminal proceeding if the error had no effect on the judgment.”  (Strickland, supra, at p. 691, 104 S.Ct. at p. 2066.)   To meet the test of constitutional prejudice, the error must impact the integrity of the adjudicatory process regarding the findings of law or facts pertaining to the determination of guilt or innocence and the consequences that flow therefrom.

“[T]he right to effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.   Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”  (United States v. Cronic, supra, 466 U.S. at p. 658, 104 S.Ct. at p. 2046.)

2. Application.

 In the present case, defendant seeks reversal of his conviction based on counsel's failure to advise him properly of the sentencing consequences of a conviction of forcible rape which resulted in his rejecting a favorable plea bargain.   Thus, the issues presented are:  (1) whether counsel's conduct fell below standards of reasonable professional judgment;  and (2) assuming it did, whether the error interfered with defendant's right to a fair trial.

Standard 4–5.1(a) of the American Bar Association's Standards for Criminal Justice provides in relevant part:

“After informing himself or herself fully on the facts and the law, the lawyer should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.”

Standard 14–3.2 provides:

“(a) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the defendant.

“(b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching a decision.”

In this case, counsel was not aware that conviction of section 261, subdivision (2), carried a mandatory prison term.   Her failure to familiarize herself with the relevant sentencing provisions before advising defendant clearly fell below “․ ‘an objective standard of reasonableness․' ”  (Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839.)   Neither party disputes this conclusion.

However, the issue remains whether, assuming the plea would have been accepted on proper advice, defendant has established prejudice within the meaning of the Sixth Amendment.   Our review of California law discloses only one case confronting this issue:  People v. Brown (1985) 177 Cal.App.3d 537, 223 Cal.Rptr. 66.   Relying on People v. Brown and Turner v. State of Tennessee (M.D.Tenn.1987) 664 F.Supp. 1113, defendant contends that as a result of counsel's failings, he “was prejudiced into not accepting a favorable plea bargain.”

In Turner v. Tennessee, supra, 664 F.Supp. 1113, Turner was charged with murder and two counts of kidnapping.   He was offered a plea bargain agreement involving a plea to one count of kidnapping and an unsuspended two-year term in state prison.  (Turner, at p. 1114.)   On the advice of counsel as to the strength of the prosecution's case, the defendant rejected the plea, went to trial, was convicted of all three counts and sentenced to life imprisonment on the murder, plus 40 years on each kidnapping count, to be served concurrently.  (Id. at p. 1115.)   After concluding counsel was ineffective in failing to recommend acceptance of the plea, the court held the defendant was prejudiced because he had established by objective evidence that there was a reasonable probability that, but for the incompetence of counsel, he would have accepted the two-year offer.  (Id. at p. 1122.)   Although the defendant had received a fair trial, the court nonetheless concluded the defendant had been prejudiced and stated:

“[T]he appropriate remedy for this petitioner must be a plea hearing at which the petitioner, if he chooses, would, ․, present the former offer as a completed agreement for consideration by the trial court․”  (Turner at p. 1124.)

The court further held the prosecution could rescind the offer “so long as that withdrawal is free of a reasonable apprehension of vindictiveness.”  (Id. at p. 1125.)   Although a number of courts that addressed this issue have, without analysis, simply reversed the judgment of conviction and ordered a new trial (see e.g., Hanzelka v. State Texas Court of Appeal (1984) 682 S.W.2d 385;  State v. Simmons (1983) 65 N.C.App. 294, 309 S.E.2d 493), Turner considered Strickland and rejected this remedy as inappropriate because it was not tailored to address the harm of a loss of a favorable plea bargain.  “Neither the first nor a second fair trial remedies the specific deprivation they have suffered.  ‘One more fair trial, or even a series of them, would not necessarily revive the lost chance.’  [Citations.]”   (Turner, supra, 664 F.Supp., at pp. 1123–1124.)

In People v. Brown, supra, the defendant was charged with a series of felonies arising out of his forcing himself into his former spouse's home and forcing her to engage in sexual acts at knifepoint.   During plea negotiations, the prosecution proposed that the defendant plead guilty to one count of sexual battery.   The defendant, however, wanted an assurance he would not be committed to state prison.   Unable to reach an agreement, the parties proposed that a pre-plea report be prepared based on a conviction of sexual battery.   The prosecutor agreed that if the report recommended probation, he would not oppose the recommendation.   The probation officer mistakenly prepared the report based on conviction of all charged offenses and thus recommended that probation be denied.   Although defense counsel recognized the error in the report, he failed to take any corrective action.   Negotiations broke off, the case proceeded to trial, and the defendant was convicted and sentenced to six years in prison.

The Third District concluded “counsel did not competently complete the negotiations on defendant[']s behalf when he failed, without justification, to take any steps to correct the pre-plea report.”  (People v. Brown, supra, 177 Cal.App.3d at p. 550, 223 Cal.Rptr. 66.)   After discussing various aspects of plea bargaining, the court concluded the ineffectiveness of counsel at the pleading stage did “not fit neatly into either the Pope or Fosselman error categories.” 4  (Id. at p. 551, 223 Cal.Rptr. 66.)   The court, however, noted that the Supreme Court in Fosselman cited with approval those Court of Appeal opinions which held:  “ ‘․ a defendant may satisfy the second prong of the Pope test by showing simply that he was prejudiced by his attorney's inadequate performance.’ ”  (Brown, supra, at p. 552, 223 Cal.Rptr. 66, quotingPeople v. Fosselman (1983) 33 Cal.3d 572 at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144, italics in original.)

The court then articulated the following test for determining prejudice where counsel failed to properly pursue or perfect plea negotiations:

“With these considerations in mind, we believe an appropriate test of prejudice in cases where it is claimed that counsel has inadequately pursued or perfected plea negotiations is to determine whether, absent counsel's failings, it is reasonably probable defendant would have had the opportunity to present a beneficial plea bargain to the court for its approval or rejection.

“Under this test, it is defendant's burden to establish that counsel's acts or omissions fell below the standard of reasonable diligence and that, absent such failing, it is reasonably probable a bargain subject to the court's discretion, and which defendant was prepared to accept, would have been available for submission to the court.   Defendant must also establish that the terms of the plea bargain are favorable when compared to the actual result of the proceedings.”  (People v. Brown, supra, 177 Cal.App.3d at pp. 554–555, 223 Cal.Rptr. 66, fns. omitted.)

Although the Brown court concluded counsel was ineffective, it refused to overturn the judgment.   The defendant failed to establish counsel's ineffectiveness “deprived him of a bargain properly subject to acceptance or rejection by the court.”  (Id. at p. 556.)   Because the prosecution never agreed to a condition limiting the initial sentence to probation with one year in the county jail, the court concluded “it is not reasonably probable that, absent counsel's failings, the beneficial plea which defendant was prepared to make, conditioned on no initial state prison, would have been available for submission to the court.”  (Id. at p. 557, 223 Cal.Rptr. 66.)

However, the court in Brown set forth the basis for its analysis if the plea had been expressly offered.

“Since it is always impossible to know whether counsel's efforts at securing a plea bargain for the client would ultimately result in the accepted plea, the proper focus of our inquiry is whether counsel's failings resulted in withdrawal of the opportunity for the defendant to present a plea bargain to the court for consideration.

“Thus viewed, the error is, to a degree, like the withdrawal of a potentially meritorious defense.   In such circumstances, it is not necessary that the defense be one which ‘would result inexorably [or probably] in a defendant's acquittal.’  [Citation.]   The error occurs because the ‘defendant is deprived of the opportunity to adjudicate a defense which may succeed.’  [Citation.]”  (Id. at pp. 552–553, 223 Cal.Rptr. 66, emphasis in original.)  5

Our review of Pope and Fosselman and their application and incorporation into Strickland does not support defendant's reliance on Turner or the conclusion reached in Brown with respect to ineffective assistance of counsel.   The deficiency of Brown and Turner is their failure to apply Strickland properly in that they fail to consider whether counsel's error had any “relationship” to the purpose underlying the Sixth Amendment right to counsel.

 We agree with the conclusion in Brown and Turner that a defendant is entitled to effective assistance of counsel at the plea bargaining stage of the proceedings.   We also agree that where counsel's failings result in the defendant's pleading guilty, he might be able to establish such error requires reversal.   However, we cannot agree that counsel's failings at a plea bargaining stage resulting in the defendant's exercising his right to a jury trial rise to a level sufficient to satisfy Strickland.   It is our conclusion that where a plea bargain is rejected based on erroneous advice and the defendant subsequently receives a trial on the issue of guilt, the erroneous advice of counsel does not constitute a Sixth Amendment error within the meaning of Strickland and Ledesma.

We do not intend this opinion to constitute an assault on “plea bargaining,” which has become recognized as an accepted aspect of the criminal justice system.   However, we do think it is important to place plea bargaining in the proper perspective.

“Plea bargaining has become an accepted practice in American criminal procedure, ‘an integral part of the administration of justice in the United States [citation], essential to the expeditious and fair administration of justice.  [Citation.]   The great majority of criminal cases are disposed of by pleas of guilty, and a substantial number of these pleas are the result of prior dealings between the prosecutor and the defendant or his attorney.”  (People v. Brown, supra, 177 Cal.App.3d at p. 546, 223 Cal.Rptr. 66, quoting People v. West (1970) 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409.)

As noted in People v. West, the purpose of plea bargaining is to maintain a flow of guilty pleas and avoid the time, expense and uncertainty of trials.   Although it is an unfortunate fact that negotiations commonly referred to as “plea bargains” have become necessary in order to reduce the congestion of overburdened criminal calendars, we find little to recommend the interpretation that the practice has anything to do with the adjudication of facts or the testing of issues.   In that sense, plea bargaining has nothing to do with a fair trial within the ambit of the Sixth Amendment.   Although the notion that a plea bargain is beneficial to a defendant is self-evident, it should be remembered that there is no constitutional right to one.  (Weatherford v. Bursey (1977) 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30.)   The question that arises clearly is:  Does a plea bargain impact the adjudication of issues?   In reality, a plea bargain has nothing to do with issue adjudication by the trial process;  it is a technique to avoid trial and issue resolution because of its impact on congested calendars.

 We do not suggest, however, that counsel's failings at the plea bargaining stage can never constitute reversible error.   Obviously, where a defendant pleads guilty based on the erroneous advice of counsel, counsel's failings have resulted in the defendant foregoing his constitutional right to a jury trial.  (Brady v. United States (1970) 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747;  Boykin v. Alabama (1969) 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274.)   In such a case, there are substantial and compelling reasons to question the reliability of the result.   Neither the facts nor the witnesses have been tested by the adversary process.   No matter what view may be taken of a sterile transcript or police report, it is the heat of cross-examination and challenge that gives confidence to the conclusion ultimately drawn.   When a defendant pleads guilty he has given up the scrutiny of the adversary process.   If that guilty plea is predicated on erroneous advice, confidence is undermined in an untested result that is the consequence of less than competent representation.   In that instance, error is clearly of constitutional dimension.   Because there has, in effect, been no testing of the conclusion, there has been no fair trial in a Sixth Amendment sense.   The error of counsel having produced the abrogation of the fair trial protection of the Sixth Amendment, the defendant's plight would satisfy Strickland.

However, in the present case, the defendant rejected the plea to a lesser offense purportedly because of erroneous advice and went to trial.   The state was put to its burden of proof, the facts were tested and the defendant was found guilty of the greater offense in a trial which we have determined was conducted properly.6  Under the test promulgated in Brown and Turner, if we find, or it could be determined, that it is reasonably probable that defendant herein would have had the opportunity to present a beneficial plea bargain to the court for approval or rejection, defendant would be entitled to relief.

Brown concludes that a defendant alleges the requisite prejudice where he alleges, “a significant additional term of imprisonment ․ resulted from counsel's [failings at the plea bargain stage].”  (People v. Brown, supra, 177 Cal.App.3d at p. 555, 223 Cal.Rptr. 66, fn. 20;  United States ex rel. Caruso v. Zelinsky (3d Cir.1982) 689 F.2d 435, 438.)   Undoubtedly, where a defendant makes such a showing he has established that he has been harmed in a practical sense.   However, the question remains whether he has established the requisite prejudice within the meaning of Strickland and Ledesma.   We view the weakness of Brown and Turner as equating prejudice in a practical sense with prejudice in a constitutional sense.   In our view, Strickland and Ledesma require prejudice in the constitutional sense wherein it is established that counsel's failings adversely impacted the purpose of the Sixth Amendment—to provide a fair trial as it has been defined.   In the present case, because counsel's failings did not constitute a Sixth Amendment error within the meaning of Strickland, it necessarily follows that counsel's failings did not result in prejudice in a constitutional sense.7

In his concurring opinion in Kimmelman v. Morrison (1986) 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305, Justice Powell, joined by the Chief Justice and then-Justice Rehnquist, expressed his view of the Strickland test for prejudicial ineffective assistance of counsel as follows:

“In Strickland we emphasized that ineffective assistance claims were designed to protect defendants against fundamental unfairness.  ‘The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.’  Id., [466 U.S.] at 685, 104 S.Ct., at 2063.   See also id., at 686, 104 S.Ct., at 2064 (‘The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result’).   Accordingly, we cautioned that the ‘reasonable probability’ test should not be applied too mechanically:

“ ‘A number of practical considerations are important for the application of the standards we have outlined.   Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules.   Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.   In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.’  Id., at 696, 104 S.Ct., at 2069 (emphasis added).

“This reasoning strongly suggests that only errors that call into question the basic justice of the defendant's conviction suffice to establish prejudice under Strickland.   The question, in sum, must be whether the particular harm suffered by the defendant due to counsel's incompetence rendered the defendant's trial fundamentally unfair.  [Emphasis added.]   See id., at 687, 104 S.Ct., at 2064 (prejudice ‘requires [a] showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable’).”  (Id. 106 S.Ct. at pp. 2593–2594, fn. omitted.) 8

It cannot and should not be ignored that as a result of the erroneous advice given in the present case defendant rejected a plea agreement to which he had no constitutional right, insisted on his constitutional right to a trial, had a fair trial, had a resolution of the facts and issues in an adversary proceeding and was found guilty of that of which he was presumably guilty.   Under defendant's argument, we would be called on to set aside a fair trial where the People had no role in the error and, under Brown or Turner, either reinstate the plea bargaining process, or under Turner, compel an offer be extended to which the defendant had no right.   Under the Brown analysis, if the prosecution refused to reextend the offer, an innocent victim would be compelled to testify and relive the experience, and under the Turner analysis, a fair trial would be set aside and the defendant would receive a plea agreement.

It strains the fabric of the system to accept as reasonable or logical the argument that a defendant who has had his day in court has a constitutional right to a windfall.   As noted by Justice Powell in his concurring opinion in Kimmelman, “[b]ecause the fundamental fairness of the trial is not affected, our reasoning in Strickland strongly suggests that such harm does not amount to prejudicial ineffective assistance of counsel under the Sixth Amendment.” 9  (Kimmelman v. Morrison, supra, 106 S.Ct. at p. 2594.)   As concluded by Justice Powell, the harm suffered by the defendant in such a case “is not the denial of a fair and reliable adjudication of his guilt, but rather the absence of a windfall.”  (Ibid.)  Because counsel's failings in no way call into question the reliability of defendant's conviction in the present case, we find he has failed to establish the requisite prejudice under Strickland.

The judgment is affirmed.   The petition for a writ of habeas corpus is denied.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

3.   Penal Code section 1203.065 provides in pertinent part:“(a) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person convicted of violating subdivision (2) of Section 261, or Section 264.1, or Section 266h, or Section 266i, or Section 266j, or 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm or subdivision (c) of Section 311.4.”

4.   In People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859, the court held that in order to establish ineffective assistance of counsel, a defendant must show counsel failed to act as a diligent advocate and that counsel's failings resulted in the withdrawal of a potentially meritorious defense.   In People v. Fosselman, supra, 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144, the court considered a claim of ineffective assistance of counsel that did not result in the withdrawal of a potentially meritorious defense.   The court noted that some of the Courts of Appeal had applied the “ ‘potentially meritorious defense’ ” standard strictly and had rejected such claims unless a “ ‘defense’ was actually lost.”  (Id. at p. 583, 189 Cal.Rptr. 855, 659 P.2d 1144.)   Other Courts of Appeal had applied a more liberal test and found the second prong of Pope satisfied where the defendant established “that he was prejudiced by his attorney's inadequate performance.”  (Id. at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)After noting this conflict in the Courts of Appeal, the court set forth the following test for ineffective assistance where counsel's failings did not result in the withdrawal of a defense:  “We conclude that in cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.”  (Ibid.)

5.   The Brown court suggests that the proposed Turner remedy is not appropriate.   In Brown, supra, the court noted:  “In cases like this, even appellate success is elusive because reversal on appeal gives ‘․ only imperfect relief.   We cannot compel the [prosecution] to reinstate its plea bargain offer;  nor can we dictate what sentence may be imposed if appellant pleads guilty without so advantageous an offer as he had before, or if he goes to trial and is again convicted.’ ”  (People v. Brown, supra, 177 Cal.App.3d at p. 557, 223 Cal.Rptr. 66, fn. 25.)Generally, the prosecution has broad discretion in plea bargaining.  (See e.g., Bordenkicher v. Hayes (1978) 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604.)   The Brown court apparently was concerned that reinstatement of the original plea bargain would interfere impermissibly with this discretion.   As the court noted in People v. Barnett (1980) 113 Cal.App.3d 563, 170 Cal.Rptr. 255:  “ ‘․ binding the prosecutor to his original plea does interfere with his discretionary functions, i.e., determining what he feels is fairest in light of the defendant's circumstances, the government's resources, and the statute involved.   Such judicial interference in prosecutorial discretion involves an intermingling of their respective roles․' ”  (Id. at p. 572, 170 Cal.Rptr. 255, quoting Government of Virgin Islands v. Scotland (3d Cir.1980) 614 F.2d 360.)

6.   In his appellate brief, defendant argued the trial court erred in instructing that rape is a general intent crime and also instructing the jury pursuant to CALJIC No. 10.23 (reasonable belief as to consent).   He further argued CALJIC No. 10.23 was defective in that it fails to refer to the general intent instructions and fails expressly to state that the prosecution bears the burden “to disprove reasonable belief in consent․”   We find the contentions meritless noting that virtually identical contentions were rejected by the Second District in People v. Acevedo, supra, 166 Cal.App.3d 196, 212 Cal.Rptr. 328.

7.   Defendant is not without remedy in a civil context.   If counsel's conduct fell below accepted standards and defendant was harmed thereby, redress may be sought in a malpractice action.

8.   Kimmelman involved a habeas petition based on a claim of ineffective assistance of counsel arising out of counsel's failure to bring a timely motion to suppress evidence allegedly seized in violation of the Fourth Amendment.   The court held restrictions on federal habeas review of Fourth Amendment claims do not extend to a Sixth Amendment claim of ineffective assistance of counsel.

9.   Although we agree with the underlying rationale of Justice Powell's analysis, we believe counsel's failure to make a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment impacted the defendant's right to a fair trial because the presence or absence of such evidence before the factfinder affects the reliability of the result.   Thus, counsel's omission was prejudicial under Strickland.

ARDAIZ, Associate Justice.

MARTIN, Acting P.J., and GEO. A. BROWN, P.J. (Ret.) *, concur.