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Court of Appeal, Fourth District, Division 1, California.

IN RE: John P. ALVERNAZ, on Habeas Corpus.

No. D012971.

Decided: June 25, 1991

Cleary & Sevilla and Charles M. Sevilla, San Diego, for petitioner. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Jeffrey S. Koch, and John T. Swan, Deputy Attys. Gen., for the People.

Petitioner seeks reversal of his criminal conviction upon the ground of ineffective assistance of counsel, the result of which was his entry of a plea of not guilty and submission to a jury trial.   His position is that had he received adequate counsel during the plea bargaining stages of the case he would have accepted the bargain, entered a plea of guilty, and suffered a penalty much lighter than that received after the jury verdict of guilty.

We conclude that this issue is properly presented by the petition.   Our review of the procedural background of the case and the substance of the petition indicates that the petitioner is in a position to raise the core issue presented.   We will deny the petition because we reach the conclusion that the participation in a fair jury trial preserves all of the defendant's basic constitutional trial rights, thereby rendering any error of counsel at the plea bargaining stages legally harmless.

I. Procedural Background.

Petitioner was charged with robbery, burglary, kidnapping for the purpose of robbery, a weapons enhancement and a prior conviction.   The crimes involved the abduction of three Mexican farm workers and the robbery at gunpoint of their cash.   Prior to the time of trial the district attorney offered a bargain involving a plea to one count which would have resulted in a maximum exposure to custody of five years.   Petitioner's counsel advised that should he go to trial and be convicted he would face maximum time in custody of eight years.   In consideration of this advice petitioner elected to plead not guilty.

Petitioner received a jury trial which resulted in conviction of the charges and a sentence which petitioner now computes will result in incarceration for a minimum of 16 years, 71/212 months.   The judgment of the trial court was affirmed by this court after hearing an appeal which asserted a number of errors.   This court determined in an unpublished opinion (People v. Alvernaz (July 17, 1989) D007290) that no errors of substance had occurred in the trial and that the petitioner was properly and fairly tried and convicted.   Petitioner's petition for review in the Supreme Court was denied.

 Thereafter petitioner sought relief in the superior court by way of a writ, claiming mistakes of counsel prejudicially deprived him of his right to assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution.   The petition having been denied in superior court, it is now renewed before this court.1

II. Resolution of Preliminary Issues.

The Attorney General interposes several contentions which, if accepted, would permit our resolution of the case without confronting the central question of the petition.   We proceed to consider and reject these several contentions.

A. “Illegality” of Proposed Plea Bargain.

 The first argument for denial of the petition is that the plea bargain petitioner claims to have lost because of the bad advice of his counsel could not in any event have been accepted because it was an “illegal offer.”   Penal Code section 1192.7 2 prohibits plea bargains in cases involving charges of a “serious felony” or “any felony in which it is alleged that a firearm was personally used by the defendant.”   Exceptions to the prohibition can be made when “there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.”  (§ 1192.7, subd. (a).)

The Attorney General contends none of the exceptions can be applicable to this case because the trial of the case establishes that there was sufficient evidence and also that the testimony of the material witnesses was obtainable.   We must reject this approach to the question.   Whether facts exist to establish one of the exceptions to section 1192.7 must be decided upon circumstances known to the parties at the time the plea bargain was made, not those which were developed by the later trial.   The fact that the district attorney proposed the bargain amounts to a stipulation that the bargain would not violate section 1192.7.   We cannot now devine the specific exception the district attorney may have been considering.   In light of the migrant status of the complaining witnesses, however, it is certainly plausible that the continued availability of material witnesses was in doubt.   In any event, we would utilize principles akin to estoppel in refusing to hear the prosecution at this point claim its own proposal for resolution of the case prior to trial constituted an “illegal offer.”  (Cf. Russell v. Rolfs (9th Cir.1990) 893 F.2d 1033.)

B. Sufficiency of Proof of Counsel's Inadequacy.

 All parties acknowledge that the burden is upon the petitioner to establish that the performance of his counsel fell below an objective standard.  (Strickland v. Washington (1984) 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674;  People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   We reject the Attorney General's argument that petitioner has not met this burden.

The evidence presented by petitioner consists of affidavits of the petitioner, his father, his mother and his wife.   These affidavits establish that petitioner was advised by his counsel that the maximum confinement which might result from conviction would be approximately eight years.   They also establish that this quantum of “risk” in terms of refusal of a plea bargain which might result in five years of incarceration was a material factor in petitioner's decision.   The points and authorities of both the petitioner and the Attorney General, although not congruent in all respects as to the likely time to be served, are in agreement petitioner's risk was substantially more than eight years, as his counsel had advised, and in all likelihood was the sixteen years plus contended by the petitioner.

The Attorney General has presented no evidence controverting petitioner's affidavits.   The affidavit of petitioner's trial attorney states that he cannot recall what advice he actually gave the petitioner respecting the potential sentence.   We thus have no basis for discounting the petitioner's contentions.   Taking them at face value, his decision to go to trial when the alternatives were either five or eight years in prison appears not unreasonable.   We conclude, therefore, that the weight of the evidence supports petitioner's contention that he was given erroneous advice, and that this advice was crucial in reaching his decision to reject the plea bargain.

Does this error constitute ineffective assistance of counsel?   We have upon occasion returned petitions of this sort to the trial court for an evidentiary determination of the standards of practice.   In this case, however, the authorities are rather clear.   It is counsel's obligation to investigate all defenses of fact and law available to his client (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859) and to determine and inform the client of all applicable statutory penalties (People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328;  People v. McCary (1985) 166 Cal.App.3d 1, 212 Cal.Rptr. 114.)

We are satisfied that failure to provide a client with accurate advice as to the potential sentence to be served upon conviction (certainly when the information on the subject is readily available in the legal authorities) constitutes ineffective assistance of counsel.  “To advise his client correctly, the lawyer needed no crystal ball;  he had only to consult the ․ Statutes and determine the provision applicable․”  (Hill v. Lockhart (8th Cir.1989) 877 F.2d 698, 703.)

C. Prejudice in a Practical Sense is Demonstrated.

 It will be our conclusion, infra, that whatever damage resulted from the imprudent rejection of the plea bargain was not prejudicial from a legal point of view.   Before reaching this issue, however, we must determine that the decision not to accept the plea bargain in fact had a causal influence on the subsequent trial proceedings.   The Attorney General contends that any assumption of prejudice is speculative because we cannot know with any certainty (1) that the prosecuting attorney would have carried through with the bargain, (2) that the defendant would have accepted it, or (3) that the court would have accepted the bargain.

We agree that a foundational requirement of petitioner's contention is a showing that, absent the mistaken rejection of the plea offer, he would have fared better in terms of end result.   Where, for instance, the actual result of the trial is no worse than the risk defendant's counsel advised possible, there is no prejudice (see Cimino v. Robinson (1986) 6 Conn.App. 680, 507 A.2d 486).   Also, petitioner's argument would be defeated could it be shown that the consummation of the bargain was unlikely even had petitioner elected to accept it.  (See People v. Kusumoto (1985) 169 Cal.App.3d 487, 495, 215 Cal.Rptr. 347 (inadequate showing offer contained firm benefits);  People v. Brown (1986) 177 Cal.App.3d 537, 223 Cal.Rptr. 66 (same);  Williams v. Arn (N.D.Ohio 1986) 654 F.Supp. 226 (no unconditional offer ever made and offer withdrawn before trial).)

We find, however, that petitioner has met his burden of showing that the plea bargain would in all likelihood have been accepted by all parties had petitioner been accurately advised as to sentence potential, and that the sentence would have been imposed in accordance with the bargain.   The petitioner's own affidavits, lacking any contrary evidence, establish that had he known the true gamble he would have accepted the bargain.   It is of course true that the court has the discretion to reject a proffered plea bargain (see § 1192.5).   We take notice, however, of the well-known practice in superior court of acceptance of reasonable plea bargains, as the plea bargain in this case certainly was, and also the statement in People v. Smith (1971) 22 Cal.App.3d 25, 30, 99 Cal.Rptr. 171, that “[a]lthough it is within the discretion of the court to approve or reject the proffered offer, the court may not arbitrarily refuse to consider the offer․”

Plea bargaining was given authoritative sanction in California in People v. West (1970) 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409, including not only pleas of guilty but pleas of nolo contendere.   Thus, the defendant is customarily entitled to enter a nolo plea even while maintaining protestations of innocence.  (See 4 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Proceedings Before Trial, § 2197, pp. 2572–2573.)   With reference specifically to the San Diego Superior Court, petitioner introduced several affidavits of prominent attorneys practicing criminal law who stated that plea bargaining was common in San Diego and that they had never had a proposed plea rejected merely because it was proffered under People v. West (i.e., a plea unaccompanied by a factual admission of guilt).   The trial court in the hearing of this petition stated, “I think that the People v. West plea is commonly taken in this county.”

We therefore conclude that petitioner was misled as to his sentencing risks at the time of considering the bargain, that the advice which led to this misunderstanding was the result of inadequate counsel, that had petitioner known the true facts he would have accepted the bargain, that if he had accepted the bargain it is presumed the court would have approved and accepted it, and that had all this transpired the petitioner would have suffered a punishment much lighter than that imposed after a plea of not guilty and a jury conviction.   We therefore face the issue whether this chain of conclusions leads to reversal.3

III. The Participation in a Fair Trial Which Results in Conviction Makes Moot and Harmless Defense Counsel's Misadvice During Plea Bargaining Negotiations.

A. Harmless Error Doctrine is Applicable to Error Resulting From Ineffectiveness of Counsel.

 A criminal defendant has a constitutional right to the effective assistance of counsel.  (Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.)   This right envisages competent representation at all stages in the criminal proceeding, and “a substantial portion of the obligation counsel owes is not directly connected with the trial but involves investigation and advice at pretrial ․ stages.”  (People v. Pope, supra, 23 Cal.3d at p. 423, 152 Cal.Rptr. 732, 590 P.2d 859.)   All errors of counsel, even if reflecting negligence or incompetence on the part of the attorney, will not, however, require reversal.4  The Pope standard requires not only that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates,” but that “[i]n addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.”  (Id. at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

The Supreme Court in People v. Watson (1956) 46 Cal.2d 818, 834, 299 P.2d 243 established the principle that for trial error to be cause for reversal of a criminal conviction it must be shown to have prejudiced the defendant, which rule is applicable not only to rights in general but to constitutional rights as well.   Complete abridgement of the right to counsel would ordinarily constitute reversible error per se (see 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Reversible Error, § 3305, pp. 4087–4088).   However, when professional representation is provided, but through negligence fails to provide adequate assistance in some particular of the trial proceedings, the matter is subject to the Watson rule, thus requiring a showing of prejudice.  (See People v. Ibarra (1963) 60 Cal.2d 460, 466, 34 Cal.Rptr. 863, 386 P.2d 487 (establishing the early test of error, requiring a showing that counsel's inadequacy was so extreme as to reduce the trial to a “farce or sham”);  People v. Pope, supra (disapproving the Ibarra standard and setting forth the broader standard permitting a showing of prejudice by establishment that the error of counsel deprived defendant of a potentially meritorious defense);  5 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Trial, §§ 2775–2788, pp. 3361–3381.)

The right to competent assistance of counsel during the plea bargaining stage has been affirmed in many cases, most recently in People v. Brown, supra, 177 Cal.App.3d 537, 223 Cal.Rptr. 66.   It is well established, however, that error caused by ineffective assistance of counsel is subject to the same requirement of a showing of prejudice as other error, hence guided by the “harmless error” concepts referenced above.  (See People v. Brown, supra, 177 Cal.App.3d at p. 545, 223 Cal.Rptr. 66;  People v. McCary, supra, 166 Cal.App.3d at pp. 9–11, 212 Cal.Rptr. 114;  5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2785, pp. 3378–3380.)

We therefore proceed to a close examination of the question of prejudice in this case.

B. There Is No Controlling Authority in California Re the Effect of a Fair Trial and Conviction on the Determination of Prejudice Resulting from Error in Plea Bargaining Stages.

People v. McCary, supra, 166 Cal.App.3d 1, 212 Cal.Rptr. 114, which involved inadequate representation at the plea bargaining stage, contains broad language which would appear applicable to our case.   The court recognized that failure to deal properly with plea bargaining issues would not, in the words of Pope, constitute a “withdrawal of a meritorious defense,” nor would it fit nicely into the later standard established by People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144, that “a determination more favorable to the defendant would have resulted in the absence of counsel's failings.”  (People v. McCary, supra, 166 Cal.App.3d at p. 10, 212 Cal.Rptr. 114.)   The court stated that:

“In the present case, prejudice can be measured by determining whether counsel's acts or omissions adversely affected defendant's ability to knowingly, intelligently and voluntarily decide to enter a plea of guilty.   In this respect, the standard applicable to the withdrawal of a guilty plea is helpful.   In other words, if, as a result of counsel's acts or omissions, it fairly appears defendant entered his plea under the influence of ‘mistake, ignorance or inadvertence or any other factor overreaching defendant's free and clear judgment’ such as would justify the withdrawal of his plea, he was ineffectively represented by counsel.”  (People v. McCary, supra, 166 Cal.App.3d at p. 10, 212 Cal.Rptr. 114.)

The difficulty with this authority, of course, is that it relates to the entry of a plea of guilty, rather than a plea of not guilty.   The major thrust of the opinion is to determine whether counsel's advice was inadequate;  that it was prejudicial follows without difficulty because it deprived the defendant of his right to trial.   We therefore conclude the apparently applicable language of the decision is not necessarily appropriate for our case.

People v. Kusumoto, supra, 169 Cal.App.3d 487, 215 Cal.Rptr. 347 is, however, a case in which reversal was urged because of inadequate counsel leading the defendant improvidently to refuse a plea bargain.   The court cites the standard Pope measure for determining ineffective assistance of counsel, implying that were such to be shown Kusumoto might be entitled to reversal of his jury conviction.   That determination is not reached, however, because the court found no evidence adequate to establish the existence of specific plea negotiations.   The implication of possible reversible error is dictum, and indirect dictum at best.

People v. Smith, supra, 22 Cal.App.3d 25, 99 Cal.Rptr. 171 represents a reversal of a jury verdict because the defendant was prevented from entering a guilty plea in conformance with an agreement entered into with the district attorney.   The case is not in point as to our issue, however, because the error was error of the judge, who refused (contrary to the procedure set forth in section 1192.5) to entertain the plea bargain.   Without considering the question of the prejudice to the defendant resulting from this denial, in light of his subsequent jury trial and conviction, the court reversed, stating simply that “The failure of the court to consider the conditional plea, and exercise its discretion in this case was error.”

We find the case not controlling, primarily because judicial error, representing as it does the power of the state, must be viewed as being a different and per se more prejudicial nature than defense counsel's error.

We find Smith neither persuasive nor helpful to the resolution of this case, for several reasons.   First, Smith apparently accepted sub silentio the proposition that any error resulting in entry of a “not guilty” plea was per se reversible, which is a questionable proposition in light of recent authorities.  (See Rose v. Clark, supra, 478 U.S. at pp. 576–579, fn. 6, 106 S.Ct. at pp. 3105–3107, fn. 6, and Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302.)   Second, Smith involved a judicial refusal to honor the statutorily prescribed obligations to consider a proffered plea bargain.   Whatever may be the propriety of reversing a jury verdict when state action deprives a defendant of a statutory entitlement, the present case involves neither state action (but instead involves defense counsel error) nor loss of an entitlement (there being no statutory right to engage in plea bargain discussions).   Finally, the Smith court peremptorily reversed a jury verdict, apparently ignoring (and without suggesting) how such a remedy “cured” the harm (if any) emanating from the error.   For these reasons, we perceive Smith provides little to either guide or persuade us in this case, and indeed, its rationale has not been cited as persuasive authority by any other district.

The case most closely in point, and the one to which we must devote most attention, is People v. Brown, supra, 177 Cal.App.3d 537, 223 Cal.Rptr. 66.   The error of counsel in this case was his failure to review and correct patent errors in a pre-plea report which had been prepared by the probation department for consideration of the plea bargain.   As the result of misstatements in the report the bargain was not concluded, the defendant went to trial, and conviction resulted in a heavier sentence than contemplated by the plea bargain.   The court recognized existing authority for the proposition that adequate representation is necessary during all phases of the trial, including bargaining negotiations, and that inadequate counsel at such stage can result in prejudice and reversible error.   The court also recognized, however, that existing authority involved imprudent pleas of guilty, rather than error in entering a not guilty plea.   It labored, then, to determine “when the failure to discharge [the obligation of competent plea bargaining] constitutes reversible error following conviction by jury trial.”  (People v. Brown, supra, 177 Cal.App.3d at p. 546, 223 Cal.Rptr. 66.)

The court reviewed and concurred in the McCary view that neither the Pope nor the Fosselman test for prejudice squarely applies to the plea bargain situation.   It cited Smith and concluded that the prejudice involved in such cases “stems from the deprivation of the opportunity for the court to exercise its discretion to accept or reject a beneficial disposition by plea.”  (People v. Brown, supra, 177 Cal.App.3d at p. 554, 223 Cal.Rptr. 66.)   The court finally enunciated the test as follows:

“[W]e 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 p. 554, 223 Cal.Rptr. 66.)

 If we were literally to apply this formulation of prejudice we would be required to reverse petitioner's conviction.   We feel not bound to do so, however, for two reasons.   First, the court concluded that the facts of its case made it improbable that the plea sought by the defendant actually would have been accepted by the district attorney and the judge.   Thus, the test outlined by the court to determine prejudice was used to reach a conclusion of no prejudice, and the case is therefore not precedent for reversing a jury verdict of guilty following an aborted plea bargain negotiation.   More importantly, however, we are convinced by our review of out-of-state authorities, and our reconsideration of the concept of reversible error in the plea bargaining stage, that the rule suggested by People v. Brown—reversal of a jury verdict because of failure of a plea bargain caused by defense counsel inadequacy—is, at least in most cases, not a proper remedy.   We note that People v. Brown in any event is not binding on this court.5  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 772, pp. 740–742.)

C. Authorities from Other United States Jurisdictions Reveal Split of Authority.

There are several out-of-state cases involving a factual situation similar to ours which result simply in reversal of the jury conviction.   Finding ineffectiveness of counsel at the time of plea negotiations, and concluding that with proper counsel the defendant would have entered a guilty plea, the court simply reverses without inquiry or discussion as to whether such remedy is either required or appropriate.6  Although these cases certainly support petitioner's contention, they are of little instruction in solving the logical dilemma of reversal of a fair trial.

We have found two cases, however, which do consider the logical problem in-depth and nevertheless result in reversal of the jury conviction.   The first of these is a federal Third Circuit case decided in 1982:  United States ex rel. Caruso v. Zelinsky (3d Cir.1982) 689 F.2d 435.   The error here was counsel's failing to advise his client of a plea bargain offer.   The court decided this was ineffective assistance of counsel and that it had occurred during a critical stage in the proceedings.   In considering reversal, however, the court was bothered by the possibility of “sandbagging” by a wily defendant.   Because of the nature of plea bargaining, only the defendant and his lawyer will know whether the plea bargain was properly transmitted to a defendant.   If plea negotiations are rejected and trial ensues, the only person able to contradict the defendant's subsequent claims of lack of knowledge of the plea bargain will be the attorney.   Concerned about this, the court remanded the case to the trial court for a factual investigation.

The appellate court also, however, considered the state's argument that “because Caruso received a fair trial he is not entitled to a habeas remedy even if he could prove ineffective assistance of counsel in the manner alleged.”   This argument was rejected, the court stating “Failure by defense counsel to communicate a plea offer to defendant deprives defendant of the opportunity to present a plea bargain for the consideration of the state judge and, on acceptance by the state judge, to enter a guilty plea in exchange for a lesser sentence.   A subsequent fair trial does not remedy this deprivation.”   (United States ex rel. Caruso v. Zelinsky, supra, 689 F.2d at p. 438., emphasis added.) 7

The second and perhaps more instructive case prescribing the remedy of reversal is Turner v. State of Tenn. (M.D.Tenn 1987) 664 F.Supp. 1113.   The case does not have direct applicability to ours because a state court had already decided the defendant should have a new trial, based upon ineffective assistance of counsel during plea bargaining.   The habeas corpus writ to the federal court raised the assertion that a new trial was not the proper remedy.   The federal judge agreed, noting that giving the defendant a new trial would simply award him the remedy he previously found so unprofitable.  “ ‘One more fair trial, or even a series of them, would not necessarily revive the lost chance.’ ”  (Id. at p. 1123.)   The remedy ordered by the district court, therefore, was to return the proceedings to the plea bargaining stage with the requirement that the defendant again be offered the bargain (whether such bargain then would be reduced to final plea to be dependent upon factors not before the court).  (Turner v. State of Tenn., supra, 664 F.Supp. at p. 1124.)

In the course of its decision, however, the Turner court gave consideration to our concerns about undoing the fair jury trial.   It referenced the argument that “the right-to-counsel guarantee of the Sixth Amendment exists only to protect other rights, either ‘simply to ensure that criminal defendants receive a fair trial,’ ․ or to ensure that, when defendants plead guilty, their waivers of rights to a trial by jury, to confrontation, and against self-incrimination are knowing and voluntary․   In this asymmetrical view, a defendant electing not to plead and to go to trial waives no rights, indeed he does the very opposite by invoking his Sixth Amendment right to go to trial.”   (Turner v. State of Tenn., supra, 664 F.Supp. at p. 1119.)

The district court rejected this concept, however.   Finding that most criminal charges are resolved by guilty plea, and therefore concluding that advice during plea bargaining is fundamentally important, the court further concluded that advice to plead not guilty should be treated with the same importance as advice to plead guilty.  “To accept or to reject a plea offer presents a binary choice at a fork in the road;  providing constitutional protection against an incompetent shove in one direction, but not against an equally incompetent shove in the other, may produce unwanted skewing of the results.   Like the character in the short story, criminal defendants facing this choice under asymmetrical constitutional protection may begin to see one alternative as the lady and the other as the tiger.   Unforeseeable and undesirable effects on the overall functioning of the plea-negotiation process could ensue.”  (Turner v. State of Tenn., supra, 664 F.Supp. at p. 1120.)   The court thus concluded that improvident advice to go to trial is, or can be, as detrimental as improvident advice to plead guilty;  each constitutes an impairment of the constitutional right of adequate counsel, and each therefore requires reversal.

We now turn to those authorities which reflect the contrary argument:  that inadequate counsel at plea bargaining stages does not require reversal if a full and fair jury trial follows.   We find no case stating this proposition as part of the ratio decidendi for a direct holding.   There are, however, persuasive judicial writings, in the nature of dicta and otherwise, which support this conclusion.

More than one court has made the point that the purpose of adequate counsel is to preserve basic trial rights.   At the conclusion of its enumeration of the obligations of defense counsel the Supreme Court in Strickland v. Washington, supra, 466 U.S. at page 689, 104 S.Ct. at page 2065 reminded that “the purpose [of these obligations] is simply to ensure that criminal defendants receive a fair trial.”   Pointing out the practical difference between a guilty and a not guilty plea, the Connecticut Appellate Court stated “In the present case, the plaintiff elected to stand on his right to trial.   He did not waive his rights ‘to plead not guilty or to persist in that plea if it has already been made ․ to be tried by a jury or a judge ․ to the assistance of counsel ․ to confront and cross-examine witnesses against him, and [his] right not to be compelled to incriminate himself.’ ” 8  (Cimino v. Robinson, supra, 507 A.2d at p. 488.)   A federal district court judge in Ohio echoed the same theme, stating “The remedy of granting the defendant a new trial or ․ permitting him to enter a guilty plea on the basis of the uncommunicated offer because the defendant's counsel failed to communicate an opportunity to plead to a lesser offense and obtain a lesser sentence, is an anomaly where the defendant is subsequently convicted in a fair trial of the greater charge.”  (Williams v. Arn, supra, 654 F.Supp. at pp. 236–237.)9

The language most persuasively illustrating the proposition under discussion is contained in opinions from the supreme courts of Arkansas and Iowa.   The dissenting judge in Rasmussen v. State (1983) 280 Ark. 472, 658 S.W.2d 867, 869 had this to say:

“[The cited Arkansas criminal rule] was intended to assure the accused a fair trial or competent advice if he chooses to plead guilty.   Although ineffective assistance of counsel can be predicated on the failure to render competent advice as to a plea of guilty [citation], once a trial has occurred, the standard for reviewing the effectiveness of counsel is whether the petitioner was afforded a fair trial.  [Citations.]   The mere fact that a petitioner denies having been apprised of a plea bargain should not be allowed to obscure the ultimate fact that the petitioner was accorded a fair trial, found guilty and sentenced.   Since the case was affirmed on appeal and we find no cause to grant postconviction relief on grounds related to the trial, it is incongruous that the jury's valid finding of guilt or the sentence imposed should be placed in question because a pretrial bargain may not have been communicated.”  10

The Iowa supreme court elaborated as follows:  (State v. Kraus (Iowa 1986) 397 N.W.2d 671, 674–675:

“No appellate response to misadvice [at the time of plea bargaining] is entirely satisfactory because the misadvice is less harmful to an accused who later stands trial than to an accused who is prompted to plead guilty.


“A practical difficulty with the rule defendant espouses lies in finding an appropriate sanction.   It would be anomalous if an accused were to enjoy an enviable advantage by virtue of the misadvice.   Upon receiving misleading advice an accused could, under the proposed rule, proceed with the comforting knowledge there was no risk in the trial;  an acquittal would free the defendant and an unfavorable verdict could be set aside.

“As we have seen, some jurisdictions grant new trials when a defense attorney fails to advise the accused of a plea bargain offer.   But it is difficult to see how a new trial restores the lost chance of the bargain.   What is being offered is another fair trial.   One more fair trial, or even a series of them, would not necessarily revive the lost chance.

“In our view it is ordinarily inappropriate to order a second trial following a fair one because of a pretrial tactical error, even if misguided.   We are unwilling to reverse [the defendant's] conviction merely because his attorney's misadvice led to a not guilty plea.” 11

D. Availment by a Defendant of a Fair Jury Trial Moots, and Makes Harmless, Errors of Defense Counsel at the Plea Bargaining Stage.

 We have previously noted the difficulty in applying the standard tests of “harmless error” to error in advice at the plea bargaining stage, when the advice results in an improvident plea of not guilty.   The Ibarra test of course does not fit because the resultant fair trial obviously was not a “sham or farce.”   The Pope test also is inapplicable because the error in demanding a jury trial did not constitute a “withdrawal of a potentially meritorious defense” (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859), but in effect resulted in assertion of all potential defenses.   The dictum in People v. McCary, supra, 166 Cal.App.3d at page 10, 212 Cal.Rptr. 114 adapts the Fosselman test (People v. Fosselman, supra, 33 Cal.3d at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144) of looking to see whether “it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings,” and concludes that it has been met if the result of the jury trial is a greater penalty than would have been imposed by reason of the plea.

We cannot agree with the McCary dictum because, stated simply, the error did not result in the loss of an advantage to which the defendant was constitutionally entitled, nor did it abort the basic trial processes guaranteed by the constitution.   To the contrary, the error resulted in a not guilty plea, triggering (rather than undermining) those trial processes which are constitutionally assured.

The constitutional role of counsel is not some abstract right to be considered in a vacuum, but must instead be analyzed within the scheme of protections granted to criminal defendants.   When the state accuses the defendant of a crime and seeks to deprive him of his liberty, that defendant is entitled to certain constitutional and statutory protections, the purposes of which are to protect him from being wrongfully convicted.   Counsel is afforded to assist the defendant in reaping the full benefits of those protections which have evolved into our trial process, a process which at bottom seeks to guard against a procedurally defective or factually incorrect conviction.   When counsel's errors deprive a defendant of one or more of these basic trial protections (the most extreme example being a guilty plea based on erroneous advice, by which all of the protections are waived), reversal is deemed appropriate because reversal restores to the defendant those protections to which he was entitled but forfeited through counsel's error.   When, however, counsel errs but we are convinced such failings have not deprived the defendant of the protections afforded by the trial process (i.e., because either no meritorious defense was withdrawn or it was not reasonably probable defendant would have reaped a better result from the trial), we conclude there is no ineffective assistance of counsel within the meaning and protection of the constitution because defendant received his fair trial.

Thus, the fact that counsel errs may mean counsel was “ineffective” in a colloquial sense, but if the defendant has nonetheless received the protections of a fair trial, we do not reverse because such a fair trial fortifies our confidence in the factual or procedural correctness of the ultimate conviction and resulting deprivation of liberty.12

Turning specifically to the question in this case, we attempt analysis of the anatomy of the plea bargain and its status in the hierarchy of criminal proceedings.   As has been emphasized in many cases (a number of which are cited above) plea bargaining is an extremely important practical aspect of modern criminal procedure, and a competent attorney practicing criminal law is obliged to maintain and exercise competency in the subject.   This does not elevate the plea bargain, however, to a constitutional (or any other) right.   While plea bargaining is sanctioned by California statute (see Pen.Code, § 1192.1 et seq.), there is no requirement that a bargain be offered by the district attorney and none that it be accepted by the court.   There is no constitutional right to plea bargain.  (Weatherford v. Bursey (1977) 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30.)   A plea bargain is essentially a “contract between the defendant and the prosecutor to which the court consents to be bound” (People v. Shepeard (1985) 169 Cal.App.3d 580, 586, 215 Cal.Rptr. 401), and by which a defendant waives his right to trial (Brady v. United States (1970) 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747).

An illuminating discussion of the nature of the plea bargain is found in Mabry v. Johnson (1984) 467 U.S. 504 at page 507, 104 S.Ct. 2543 at page 2546, 81 L.Ed.2d 437:

“Respondent can obtain federal habeas corpus relief only if his custody is in violation of the Federal Constitution.   A plea bargain standing alone is without constitutional significance;  in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.   It is the ensuing guilty plea that implicates the Constitution.   Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent's liberty at issue here.”  (Fns. omitted.)

We can conceive of many decisions to be made in the representation of a criminal defendant which, if made improvidently, will prejudice the defendant in a practical sense.   When those decisions result in a substantial diminishment of the defendant's trial presentation, they may be considered cause for reversal and new trial.   Without further reference to specific authority, we can all call to mind such instances:  failure to call an important witness;  failure to object to an improper evidentiary presentation by the prosecution;  failure to exclude illegally obtained evidence.   When the misjudgment of counsel prejudices the defendant in a manner not an integral part of his trial process, however, we are hard pressed to find reason for reversing the trial.

As an example of this concept, we refer to the informal negotiations which are known in many cases to occur between the prosecution and defense.   Oftentimes these take place before any charge is formally filed against a defendant.   We all know that cooperation by a defendant in the prosecution of some other accused will often result in a downgrading or dismissal of his charge.   We are also aware of the fact that adroit bargaining with the district attorney before charges are filed can often blunt or mitigate the ultimate formal charge.   However, a defendant has no “right” to these potential benefits.   Certainly, when the opportunity affords itself, a competent defense counsel will press such potential advantages—and failure to do so may very possibly constitute attorney negligence.   But the inability of a defendant to take advantage of these consensual or contractual benefits from negotiation with the government cannot, to the best of our knowledge and research, be deemed cause for undoing a subsequent trial.

So it is, we believe, with plea bargaining.   An improvident guilty plea of course deprives the defendant of entitlements—all the basic trial entitlements.   A failure to achieve a potential plea bargain, however, the result of which is a not guilty plea, deprives the defendant of no entitlement.   We most strenuously state, therefore, our disagreement with the Turner court, which equated error in entry of a guilty plea with error in entry of a not guilty plea.   The alternative decisions are not “binary choice [s] at a fork in the road,” but elections which result in a drastically altered position for the defendant on the one hand, and no alteration at all on the other.   A plea of guilty (whether motivated by a plea bargain or otherwise) decides the case and ends the issue as to entitlement to trial rights.   A plea of not guilty does not change the defendant's status in the eyes of the law (it being presumed even before the plea that he stands not guilty) but merely affirms his demand to all trial entitlements.13


We conclude, therefore, that Alvernaz's defense counsel's error in advising him as to the possible consequences of his not guilty plea, although perhaps negligent in terms of legal practice, as not meeting the standard of practice in the community, did not result in deprivation of any constitutional or other right to which Alvernaz was entitled, and hence did not from a legal point of view cause prejudice.   We therefore deny the petition.14

Although I disagree with the analysis in the majority opinion and would not reach the issue on which it chooses to dispose of this petition, I concur in its result.

“The object of an ineffectiveness claim is not to grade counsel's performance.   If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”  (Strickland v. Washington (1984) 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674.)

To reach out and touch a constitutional issue it finds intriguing, the majority has given analytical short shrift to some, and avoided other, factual predicates which must be resolved in Alvernaz's favor before we should concern ourselves whether actual, as opposed to what the majority characterizes as “legal,” prejudice exists.   For the same reason, it is premature to ponder whether the court can fashion an appropriate remedy for persons who are deprived of an opportunity to avoid prolonged incarceration because their attorneys grossly understate the penal consequences of rejecting a proposed plea bargain or fail altogether to communicate the People's offer of compromise.

The majority, somewhat apologetically,1 purports to find Alvernaz was actually prejudiced by his incompetence and then proceeds to analyze whether the criminal justice system should provide him a remedy for the many additional years of imprisonment he must endure because his counsel is assumed to have failed to provide minimally competent advice at a critical stage of the criminal litigation.   To reach this issue the majority presumes the bargain offered was one which would have been accepted by both the trial court and Alvernaz.   Neither presumption is adequately supported.   Rather, the record before this court is insufficient to establish Alvernaz suffered any actual prejudice whatsoever.   Absent that preliminary showing, he is entitled to no relief and there is no need for further discussion of constitutional principles.



At the time Alvernaz was tendered an offer to bargain a disposition of pending charges, he was charged with one count of first-degree robbery (Pen.Code,2 §§ 211/213), two counts of second-degree robbery (§§ 211/213), and one count of kidnapping for the purpose of robbery (§ 209), with allegations he personally used a firearm during each offense.   These charges arose from two separate incidents during which three victims were kidnapped and robbed at gunpoint.

Although the various declarations are somewhat obscure, it appears shortly before trial the prosecutor offered to permit Alvernaz to plead guilty to one count of second-degree robbery plus the firearm enhancement in exchange for a dismissal of other charges including kidnapping for robbery which exposed him to life imprisonment with possibility of parole.   Although petitioner vaguely states he was advised by his lawyer this offer carried a four- or five-year maximum sentence, in fact, the mid-term sentence for second-degree robbery plus enhancement would result in a five-year sentence, and the upper-term which the court was free to impose consisted of five years for the robbery plus two years for the weapon use.

In choosing to reject the offer, Alvernaz admits he relied on his counsel's optimistic assessment of chances for an outright acquittal at trial, his claim of innocence and his perception the magistrate expressed concerns about the strength of the People's case at the time it bound him over to superior court.3  His attorney advised him the chances of winning the case on the merits was 70 to 80 percent.   Unlike the defendants who have raised similar issues in like cases, Alvernaz has steadfastly maintained his innocence.   It was because of these combined factors a superior court judge who denied Alvernaz's earlier petition for habeas corpus concluded he had not carried his burden of showing he would have accepted the bargain were he correctly apprised of the maximum sentence exposure.   While we treat Alvernaz's petition in this court de novo, it is significant Alvernaz submits no additional material to support his petition here.

In any event, the factors relied on by the superior court are appropriate for our consideration and accurately reflect the record.   More importantly, in his initial declaration, Alvernaz does not state he would have accepted the bargain as offered had he understood the sentencing consequences.   He declares, after a bargaining session shortly before trial, he asked his attorney

“if he thought I should take this offer.  [The attorney] then said that if he didn't think he could win, he would advise me like a great Irish uncle to take the plea bargain.   After this meeting, I asked my father, who attended the meeting, what he thought I should do.   He told me to do as the lawyer advised.


“I was further encouraged in this decision by my attorney's optimistic projections that there would be a 70–80% chance of winning the case should we go to trial.   Had I been aware that losing this case would have meant a statutory minimum nine years to life, and an actual ‘real time’ sentence of at least 16 years in prison prior to parole, I would have attempted to negotiate a ‘no contest’ plea to the District Attorney's one-count offer.”  (Italics added.)

In a subsequent declaration three months later, Alvernaz again refers to his attorney's optimistic projection of winning the case and that he had hired his attorney because “I grew up with his sons and knew him.   I was completely dependent upon him for his professional advice throughout the entire matter and I trusted him․”   In this later declaration, Alvernaz does specifically state he would have accepted the bargain, an inconsistency in light of his “counter-offer” position in the earlier declaration which Alvernaz does not attempt to explain.

Thus, on this record, I, like the trial court in Alvernaz's earlier petition for habeas corpus, conclude he has not established his failure to accept the offered plea bargain was the result of any miscommunication regarding sentencing consequences.



As stated, Alvernaz was charged with kidnapping and robbing three different victims, in two separate incidents.   Each robbery and the kidnapping are serious felonies as described in section 1192.7, subdivision (c).   As to each of these felonies and also because Alvernaz was alleged personally to have used a firearm in these crimes (irrespective of whether they would otherwise be defined as serious felonies), the prosecutor was prohibited from offering and the court was barred from accepting a plea bargain absent a showing there was insufficient evidence to prove the People's case, testimony of a material witness(es) cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.  (§ 1192.7, subds. (a), (b).)

Here, the People neither admit nor deny they tendered the bargain described by Alvernaz.   However, they argue he is now precluded from claiming prejudice from not accepting such an offer because it was illegal under section 1192.7.  Like the majority, I agree the People's argument is untenable.   Although I do not find, as does the majority, that a mere tender of a facially illegal bargain by the People can be deemed a “stipulation” of legality, they must be deemed effectively estopped from raising that issue to now contend Alvernaz could not have accepted their offer.   Although the People could have withdrawn the offer any time before it had been confirmed by a judgment entered by the trial court, the People do not contend they would have done so.

On the other hand, section 1192.7 specifically prohibits the court from accepting bargains in these cases unless it independently determines an exception exists.   Significantly, Alvernaz does not suggest any of the three exceptions actually existed in this case.   He merely states the mere tender of the offer implies one of the three exceptions must exist, or at least have been believed to exist by the prosecutor.   This approach is too simplistic.   Regardless of the prosecutor's belief, the relevant inquiry now is whether the trial court would have concluded there was a factual basis supporting such an exception after reasoned inquiry.  (See discussion in People v. Stringham (1988) 206 Cal.App.3d 184, 200, 253 Cal.Rptr. 484 [commending a trial court's independent analysis of the record to assess and reject the prosecutor's representation there was substantial doubt the evidence would be sufficient to prove the case].)

While it is conceivable that a trial court eager to clear its calendar might be less than scrupulous in determining whether exceptions exist, this court should not presume the trial court will knowingly ignore statutory prohibitions enacted by the People as part of the initiative measure entitled “The Victim's Bill of Rights ” and act in excess of its jurisdiction.  (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913–914, 141 Cal.Rptr. 133, 569 P.2d 727;  People v. Castellano (1983) 140 Cal.App.3d 608, 612, 189 Cal.Rptr. 692.)   However, such an illogical presumption is implicit in the majority's omission of any discussion of this point.

There may well have been a valid section 1192.7 exception, but Alvernaz suggests none and the record tilts otherwise.   It is obvious the third exception, the lack of any sentencing disparity, does not exist;  it is the purported magnitude of that disparity which underlies Alvernaz's petition.   While the majority hypothesizes the migrant nature of the victims in this case may have been a legitimate concern of the prosecutor, there is no indication in this record that was the case.   The preliminary hearing had been held several months before the bargaining session took place and testimony of the victims undoubtedly was preserved in that transcript and have been available should they be unavailable at trial.   Further, there are three separate victims, each of which Alvernaz was charged with kidnapping and robbing while using a firearm.   Assuming even two witness/victims were likely to be unavailable, the bargain to dismiss a kidnapping charge as to even one is plainly prohibited by this statute.

Further, there is no hint in this record that the evidence available could be deemed insufficient to obtain a conviction on any charge.   Presumably, it is the unavailability of this exception which explains Alvernaz's failure to even allege it exists.   In any event, in addition to the testimony of the three victims, there was evidence corroborating their testimony.   Moreover, each was well acquainted with Alvernaz before the crimes, making a misidentification defense unavailing.   Finally, Alvernaz's own credibility, had he testified, was impeachable by his prior felony conviction for receiving stolen property.  (§ 496.) 4

The majority skirts the foregoing concern by limiting its comment to an irrelevant truism:  “We take notice, however, of the well-known practice in superior court of acceptance of reasonable plea bargains, as this certainly was․”   This misses the point of this case.   Here, the trial court had no discretion to accept this plea bargain without first establishing the case fell within one of the section 1192.7 exceptions.   Absent such a showing, this plea bargain is unreasonable, yea, prohibited, as a matter of law.   The majority understandably fails to take notice of any relevant “well-known practice,” one in which trial courts accept plea bargains prohibited by section 1192.7.   Entering of an improper plea bargain exceeds a court's jurisdiction.  (People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473, 475, 220 Cal.Rptr. 87.)   Although the People can be estopped from attacking on appeal the court's error in accepting a plea bargain they submit to it (People v. Webb (1986) 186 Cal.App.3d 401, 230 Cal.Rptr. 755), it is demeaning to presume a trial court likely would enter judgment on a People's bargain when it is absolutely precluded from doing so by the strictures placed in section 1192.7 through a vote of the People.


Although I do not believe the majority is warranted in reaching the issue, I disagree with the rationale underlying its holding.   In attempting to state a rule which would avoid granting defendants a second “fair” trial, the majority proposes one which would deny them any relief from the penal consequences following a “fair” trial whenever counsel fails to correctly explain, or even to communicate, the benefits of available alternatives to a defendant before trial.   For instance, the majority would apply its rule to deny relief to a defendant who is sentenced to life imprisonment after a “fair” conviction, even though undisputed evidence later established counsel had failed to communicate a legal offer to dismiss several serious charges in exchange for a plea to a routine felony and even in face of affidavits conclusively proving a defendant would have accepted the offer and the court would have approved it.

The majority recognizes its rule cannot be squared with the literal language of the test for constitutionally ineffective counsel expressed in People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.   There, the court concluded that even in cases where the attorney's conduct has not deprived the client of a defense, ineffectiveness is legally redressable where, absent counsel's failings, “a determination more favorable to the defendant would have resulted in the absence of counsel's failings.”   (People v. Fosselman, supra, 33 Cal.3d at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)

The role of defendants' attorneys in providing effective assistance transcends mere competence in assuring clients receive a fair trial and a sentence commensurate with culpability established in that proceeding.   An attorney's role is to do everything ethically proper to see that the client receives the most favorable outcome possible—regardless whether that outcome is one which society considers just.   Society relies on the adversary system to produce just results through partisan advocacy and when defendants, prosecutors and the courts agree to a negotiated disposition, that process has been fulfilled to society's expectations although, in particular cases, the possibility of obtaining a more severe sentence has been lost.   The guiding principle in determining whether attorneys provide effective representation must then be whether they discharge the role of partisan advocates faithfully and zealously, not whether the performance yields what the court views as a just result.  (See Gengo, In The Future of Effective Assistance of Counsel:  Performance Standards and Competent Representation (1984) 22 Amer.Crim.L.Rev. 181, 200.)

I recognize the precept that the requisite prejudice to sustain a claim of reversible ineffective assistance of counsel cannot rest on an alleged deprivation of a right the law does not provide.  (See Nix v. Whiteside (1986) 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 [denying a claim defendant was prejudiced because his attorney deterred him from committing perjury;  the court refusing to consider whether defendant's perjury might have achieved a more favorable result for him].)  However, there is no such impediment here where Alvernaz had a right to accept the bargain offered by the People and the majority is willing to presume the bargain would have been approved by the trial court.

The issue to which the majority would apply its new rule is hardly unique to jurisprudence.   For at least 25 years, it has been presented and resolved in many state and federal decisions, only a sampling of which is cited by the majority.   Significantly, none have declared that a defendant actually substantially prejudiced by a sentence disparity resulting from failure to be properly advised of sentencing consequences in rejecting a plea bargain, is entitled to no relief of any kind.   The rare criticism has been directed only to the inclusion of a new trial as one remedy.   Even more compelling is that every reported case has determined that the type of counsel inadequacy and actual prejudice the majority presumes here is redressable because it violates a defendant's Sixth Amendment guarantee of effective assistance of counsel.

I concur in the majority's logical rejection of the notion that even if its presumed facts are correct that Alvernaz should receive another fair trial.   Such a remedy would fulfill no policy factor recognized in Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, nor is it a benefit to which Alvernaz is entitled.   It does not tend to improve performance of future representation, it is inefficient and systemically uneconomical.  (See Schwarzer, Dealing with Incompetent Counsel—The Trial Judge's Role (1980) 93 Harv.L.Rev. 633, 634–635.)   It does not relate to any misconduct by the state or judiciary, and is of no benefit to the defendant except in the rare case where evidence may have become unavailable on retrial.   In the case where a second “fair” trial benefits a defendant because of lost evidence, that is a benefit which cannot be justified, is not related to the malpractice for which a remedy should be addressed and punishes the state whose conduct has been scrupulously proper.

I also concur in the majority's assertion a defendant has no statutory nor constitutional right to be tendered a plea bargain.   It is a fact also the prosecutor need not even negotiate.   However, these concerns are irrelevant to a case in which a bargain has been offered and actual incompetency of defense counsel shown.   In such cases where a defendant is lulled into proceeding with a trial which results in a sentence grossly disproportionate to the maximum sentencing jurisdiction of the court as incompetently explained to him by his attorney when advising him not to accept a pretrial offer, the Sixth Amendment's guarantee of effective representation has been denied.   Under the circumstances presumed by the majority, it is not necessary to establish that in addition, Alvernaz was denied a later fair trial.   The right to a fair trial is a separate Sixth Amendment guarantee independent from the right to effective assistance of counsel.

After noting the inappropriateness of a new trial as a remedy, the majority simply ignores the remedy uniformly approved by the numerous state and federal cases which have found ineffectiveness of counsel on similar facts.   The majority, uncomfortable with the prospect of affording an undeserved new trial, simply avoided the propriety of alternative remedies by deciding these facts do not establish a constitutionally ineffective assistance of counsel.   This is totally inconsistent with every other reported decision we have found.   In some form or another, those decisions either direct or permit the People to restore defendants to their pretrial status with the opportunity to accept the offered bargain and to have it presented to the trial court for acceptance or rejection.   That is the course adopted by the court in Turner v. State of Tenn. (M.D.Tenn.1989) 726 F.Supp. 1113, 1115–1118.   This Turner decision is the latest of many flowing from a single case, and is subsequent to the earlier decision cited by the majority, Turner v. State of Tenn. (M.D.Tenn.1987) 664 F.Supp. 1113.  Turner 's decisional history subsequent to 1987 is significant in that the United States Supreme Court granted certiorari after the Sixth Circuit Court of Appeals had specifically approved a remedy which provided Turner a new plea hearing during which a rebuttable presumption of vindictiveness would attach to any plea offer which carried a sentence in excess of that the People made to defense counsel before trial.  (Turner v. State of Tenn. (6th Cir.1988) 858 F.2d 1201, 1208–1209.)   The United States Supreme Court granted certiorari.   Having the opportunity to do so, the Supreme Court did not question the propriety of providing a remedy to Turner whose counsel was found to have been constitutionally ineffective for exactly the same deficiency as the majority find Alvernaz's counsel to have exhibited, rather it remanded for further consideration in light of its opinion in Alabama v. Smith (1989) 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865, which had held a presumption of vindictiveness is not proper when an original judgment is based on a guilty plea and the later judgment follows trial on remand.  (Tennessee v. Turner (1989) 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559.)   The District Court then altered its earlier proposed remedy and directed the People to present the pretrial offer to the trial court for acceptance or rejection.  (Turner v. State of Tenn., supra, 726 F.Supp. at pp. 1115–1118.)

Implied in the majority's opinion is a distrust of manipulative defendants and lawyers.   The “sandbagging” dictum in State v. Kraus (Iowa 1986) 397 N.W.2d 671, 674–675, cited by the majority hardly justifies its willingness to deny an actually injured defendant the opportunity to accept a legitimate plea bargain, even after trial where it was negligently (or intentionally) withheld or miscommunicated because of counsel's pretrial ineffectiveness.   In any event, this concern has no real-life application to this case where there is no suspicion that Alvernaz is engaged in any duplicity.   If there were, relief could be denied on that ground.   Here, if the counsel's failures as described by Alvernaz are not accurately related, the attorney is free to respond, and has.   In those cases where the attorney contradicts the client, it is unlikely the client's version will prevail.   If, as here, counsel's recollection is vague, the court has to make a factual determination, a routine facet of the judicial function.   If the attorney admits the malpractice, then, and only then, does the concern of attorney perjury arise in the “sandbagging” context.   Is there any statistical or logical likelihood that attorneys will risk perjury charges by falsely declaring their own incompetence in representing a client, when such admissions are against their own interests and permit sanctions and reference for State Bar proceedings?   In such a case, the attorney has nothing to gain and everything to lose.   I conclude the risk of client/attorney manipulation of the system at the risk of penal and professional sanctions is illusory and cannot justify the blanket policy espoused by the majority which would deny any relief whatsoever for a counsel's proved pretrial Sixth Amendment ineffectiveness, regardless of how proper the client's conduct in relying on counsel's guidance and how great the sentencing disparity which results.


1.   Although article VI, section 10 of the California Constitution grants the Court of Appeal original jurisdiction in habeas corpus proceedings, the preferred procedure is to file the initial petition in the superior court.  (People v. Munoz (1984) 157 Cal.App.3d 999, 1017, 204 Cal.Rptr. 271.)   When the appellate record does not, or cannot, reflect the grounds for a claim of ineffective assistance of counsel, the issue is appropriately raised by writ of habeas corpus.  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

2.   All statutory references are to the Penal Code Code unless otherwise specified.

3.   The superior court judge, addressing the petition on the basis of the affidavits and without benefit of a full evidentiary hearing, concluded that the advice given petitioner was negligent and that there was a good possibility the petitioner would have accepted the plea bargain had he been properly advised.   Nevertheless, the superior court judge denied the petition on the ground that petitioner had not met “his burden of demonstrating that there is a demonstrable reality that he would have accepted [the plea bargain].”  The judge further, however, recognized the difficulty of the issue by stating “I recognize that this may be a perfect case for appellate review.”   We, in turn, recognize that the factual aspects of the issue might be more fully developed were we to return the case to the trial court for a full evidentiary hearing.   We decline to do this, for two reasons.   First, the facts crucial to the question would seem to have been fully developed in affidavits which are before our court, and there is no suggestion that live testimony from any of the affiants would enlarge the evidence.   More importantly, however, it is our disposition to resolve the case on legal rather than factual grounds, assuming for purposes of our opinion the establishment by the petitioner of all requisite factual matters.   We do not, therefore, in any sense prejudice the petitioner by determining the case without further factual review.

4.   The reversal-per-se standard is apparently reserved for fundamental trial errors (such as the complete denial of counsel) which so “abort[s] the basic trial process [citation], or den[ies] it altogether” (Rose v. Clark (1986) 478 U.S. 570, 578, fn. 6, 106 S.Ct. 3101, 3106, fn. 6, 92 L.Ed.2d 460) as to raise the concern that defendant was never afforded a fair opportunity of the trial which the constitution provides him.  (See also People v. Lee (1987) 43 Cal.3d 666, 674–675, 238 Cal.Rptr. 406, 738 P.2d 752.)   As we discuss below, an error of counsel which causes the defendant to plead not guilty does not abort the basic trial process;  to the contrary, it causes him to be afforded precisely that fair trial to which he is entitled, rendering inappropriate the use of a reversal-per-se standard for such errors.

5.   We are of course aware of the opinion in People v. Pollard (1991) 231 Cal.App.3d 823, 282 Cal.Rptr. 588, decided concurrently with this opinion by another panel of this court.   The two panels have endeavored to publish their opinions simultaneously so that neither would be deemed precedential in terms of the other.   These two immediately current decisions, which come to opposite conclusions as to the same issue of law, illustrate the need for further treatment by courts of more senior jurisdiction.

6.   Most of these cases involve a failure of counsel to communicate the availability of a plea bargain to the defendant, thus effectively precluding his consideration and acceptance of same.  (See, e.g., Hanzelka v. State (Tex.App.1984) 682 S.W.2d 385;  Lyles v. State (1978) 178 Ind.App. 398, 382 N.E.2d 991;  State v. Simmons (1983) 65 N.C.App. 294, 309 S.E.2d 493;  People v. Whitfield (1968) 40 Ill.2d 308, 239 N.E.2d 850;  Commonwealth v. Copeland (1988) 381 Pa.Super. 382, 554 A.2d 54;  Ex Parte Wilson (Tex.Cr.App.1987) 724 S.W.2d 72.)   In Commonwealth v. Napper (1978) 254 Pa.Super. 54, 385 A.2d 521, the error was similar to that in this case:  erroneous advice as to the potential sentence after trial (failure to advise that conviction could result in sentence of 10 to 40 years as compared to offer of cap of 3 years).   Other cases presented additional variations of failure of adequate representation:  State v. Ludwig (1985) 124 Wis.2d 600, 369 N.W.2d 722 (counsel misleads client to conclude that the decision whether to accept the plea offer was not hers to make);  Tucker v. Holland (W.Va.1985) 327 S.E.2d 388 (failure to follow client's instructions to accept bargain to enter guilty plea, counsel unsuccessfully insisting on nolo plea).

7.   In support of its conclusion that the “fair trial” should be reversed the court referenced (with a “Cf.” citation) Rose v. Mitchell (1979) 443 U.S. 545, 557–564, 99 S.Ct. 2993, 3000–3004, 61 L.Ed.2d 739.   This case held that reversal of a criminal conviction could be based not upon any trial errors but upon racially discriminatory composition of the grand jury which had presented the criminal indictment.   Thus, in Rose the court held that a fair jury verdict could be vacated because of a pretrial error of constitutional dimension.   The point presumably is that some forms of constitutional pretrial error so infect the system that they must be unraveled, even though there is no doubt as to the defendant's guilt because he received a fair trial.   We of course accept the proposition that some errors by the state which deprive a defendant of fundamental constitutional rights may require, for prophylactic public policy considerations unrelated to the defendant's guilt or innocence, reversal of the conviction.

8.   The case is not a clear holding for the concept we examine because it was not shown that the sentence actually imposed after trial was any greater than the potential sentence defendant was willing to risk when he rejected the plea bargain.   Hence there was no prejudice resulting from the inadequacy of assistance.

9.   Again, the narrow holding of the case does not depend upon this logic, since the court found that the plea offer was never an unconditional offer and was withdrawn before trial;  hence there was no causal link between defense counsel's inadequacy and the resulting trial.

10.   The majority denied the petition upon a finding of inadequate showing of prejudice, but did so without prejudice to a renewed application upon an expanded factual showing.

11.   The case was reversed and returned for further trial proceedings.   The basis of reversal, however, was not the misadvice of his counsel at the time of plea bargaining, but erroneous counseling given him from the Bench.   As we have remarked above, misadvice by the judge leading to a mistaken plea by the defendant poses a more fundamental deprivation of rights than misadvice of one's own counsel.

12.   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.)

13.   The concept was well stated in Johnson v. Duckworth (7th Cir.1986) 793 F.2d 898, 900–901, a case involving the power of an attorney to make the plea bargain decision for his client:“Johnson argues that the decision to reject a plea agreement is merely the flip side of the decision to plead guilty and that, a fortiori, a defendant's rights are violated when his attorney unilaterally rejects the agreement.   The issue is not quite as simple as Johnson would have us believe, however.   There is a vast difference between what happens to a defendant when he pleads guilty as opposed to what occurs when a plea agreement is rejected.   The rejection of a plea agreement, in most instances, will result in the defendant going to trial with all of the concomitant constitutional safeguards that are part and parcel of our judicial process.   The defendant who pleads guilty, on the other hand, waives many of these protections, including, for example, the right to trial by jury [citation] and the right to object to allegedly unconstitutional searches and seizures.  [Citations.]   Contrary to Johnson's contentions, there is a significant difference between the consequences emanating from a decision to reject a plea agreement and not plead guilty and the decision to enter a guilty plea.”

14.   We have several times characterized the conduct of defense counsel in this case as inadequate, negligent or the like.   It bears emphasis that we make this determination only for the purpose of considering the petitioner's claim of prejudice, and that the basis of our decision is the very limited evidentiary presentation made by the writ petition and responding papers.   The attorney in question is not a party to these proceedings and has had no practical or legal opportunity to refute the accusation of negligence against him.   We state the obvious when we caution that our conclusion, based as it is on very limited evidence, should not be used by anyone or in any way as a presumption in any other proceeding involving the defense counsel.

1.   See footnote 11 of the majority opinion.

FN2. All statutory references are to the Penal Code..  FN2. All statutory references are to the Penal Code.

3.   Alvernaz does not identify any part of the record supporting this perception nor does he make an offer of proof in this regard.   There is no suggestion of factual support for such a concern, even if it were expressed.

4.   These facts are extracted from our unpublished opinion in People v. Alvernaz (Jul. 17, 1989) D007290.

FROEHLICH, Associate Justice.

HUFFMAN, J., concurs.

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