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

The PEOPLE, Plaintiff and Respondent, v. George Edward BARELLA, Defendant and Appellant.

No. A075711.

Decided: September 24, 1997

Gerry W. McGee, under appointment by the Court of Appeal, for plaintiff and respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman and Christopher W. Grove, Deputy Attorneys General, for plaintiff and respondent.

George Edward Barella (appellant) timely appeals from a conviction of felony possession of heroin.   Appellant's conviction was found to be a second “strike” under the “Three Strikes” sentencing law (Pen.Code, §§ 1170.12, 667, subds.(b)-(i)),1 and consequently, his base prison term was doubled from three to six years, and he was found to be ineligible for parole until he had served four-fifths of his sentence.   He contends the trial court erred by failing to advise him regarding the parole eligibility limitation contained in the Three Strikes law.   We agree and, accordingly, reverse with directions.

Facts And Procedural History

On August 23, 1995, appellant was the subject of a surveillance operation by narcotics officers investigating reports that he was involved in the sale of narcotics.   He was approached by the officers who attempted to inform him of a search warrant for his residence.   Appellant walked away from the officers and refused to follow their instructions to stop.   The officers used physical force to control appellant and, while resisting, appellant threw some suspected heroin over a fence.   After placing appellant under arrest, the arresting officers conducted a search of his apartment and located several items associated with the use of illegal drugs.   Appellant waived his rights and provided a written statement to the officers, stating that he “threw some heroin down.”   He also admitted to possession of the heroin but denied that it was for sale, asserting instead that it was for his own personal use.   The suspected heroin was sent to the Department of Justice lab and was found to have a total net weight of .28 grams.

On October 20, 1995, the Lake County District Attorney charged appellant with possession of heroin (Health & Saf.Code, § 11350) and with misdemeanor resisting arrest (§ 148, subd. (a)).  The information further alleged that appellant suffered a prior serious felony conviction for robbery (§ 211) within the meaning of the Three Strikes law.

On November 17, 1995, pursuant to a plea agreement, appellant entered a plea of guilty to the possession charge and admitted the prior serious felony conviction.   The court dismissed the misdemeanor charge.   On or about December 8, 1995, appellant received the probation officer's report which contained a statement referring to section 1170.12, subdivision (a)(5) 2 (hereinafter, the 4/5 Rule), which requires that each Three Strikes defendant serve at least four-fifths of his or her sentence prior to parole eligibility, as well as a recommendation that the sentencing court impose the aggravated term of three years.   Appellant moved to withdraw his guilty plea, arguing that he was not aware of the 4/5 Rule at the time of his plea.   On February 16, 1996, the court denied appellant's motion to withdraw his plea, finding that the 4/5 Rule is a collateral matter and therefore doesn't require a Boykin-Tahl 3 advisement.   On March 1, 1996, the court imposed the aggravated term, which was doubled pursuant to section 1170.12, subdivision (c)(1), for a total of six years.   Appellant filed a notice of appeal on May 24, 1996, and obtained a certificate of probable cause on October 31, 1996.


I. Failure To Admonish About 4/5 Rule

 The trial court did not advise appellant that the Three Strikes law limits his ability to earn conduct credits and mandates that each inmate serve a minimum of four-fifths of the total sentence imposed before parole eligibility. (§§ 1170.12, subd. (a)(5), 667, subd. (c)(5).)   Appellant contends the trial court was required under Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, and Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 (Bunnell ), to advise him of that provision, claiming that it is a “direct consequence” of his plea.

A. Direct Consequences

The Fifth District has recently addressed this issue in People v. Cortez (1997) 55 Cal.App.4th 426, 64 Cal.Rptr.2d 71 (Cortez), and held that the 4/5 Rule is not a direct consequence under the Boykin-Tahl-Bunnell line of cases and, therefore, does not require judicial advisement.  (Id. at p. 431, 64 Cal.Rptr.2d 71.)   As we will discuss, we respectfully disagree with the Fifth District's conclusion in Cortez.

In Boykin, supra, the United States Supreme Court concluded that “[i]t was error ․ for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary.”  (395 U.S. at p. 242, 89 S.Ct. at p. 1711.)  “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.”  (Id. at pp. 243-244, 89 S.Ct. at p. 1712.)

In Tahl, supra, the California Supreme Court held that the Boykin advisements are required for all direct consequences of a guilty plea:  “[T]he record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.   Each must be enumerated and responses elicited from the person of the defendant.”  (1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)   In Bunnell, supra, the California Supreme Court elaborated:  “In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute․”  (13 Cal.3d at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086;  see also Tahl, supra, 1 Cal.3d at p. 133, 81 Cal.Rptr. 577, 460 P.2d 449.)

 In consequence of the Boykin-Tahl-Bunnell line of cases, a finding that a particular consequence is “direct” imposes a significant duty on the court.   In such situations, the record must contain “direct evidence” that the defendant was advised of the consequence.  (Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)   Although the court's duty to advise as to direct consequences is well settled, the exact boundary between “direct” and “collateral” consequences remains indefinite and subject to judicial debate.

The issue of whether a minimum-time-served requirement is a direct consequence under Boykin-Tahl-Bunnell was first addressed in People v. Tabucchi (1976) 64 Cal.App.3d 133, 134 Cal.Rptr. 245 (Tabucchi ).   In that case, the Fifth District held that “notice to a defendant of any statutorily required minimum term for parole eligibility (such as contained in Health & Saf.Code, § 11379) contrary to and of greater duration than the usual Adult Authority policy based on Penal Code section 3049, is constitutionally required as a prerequisite to entry of a guilty plea under the rationale of In re Tahl, supra.   Such a minimum term for parole eligibility must be deemed a direct rather than a collateral consequence of the guilty plea.  [Citations.]”  (Tabucchi, supra, 64 Cal.App.3d at p. 143, 134 Cal.Rptr. 245, italics in original;  see also In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561.)

In Tabucchi, the defendant pleaded guilty to one count of transportation and sale of phencyclidine, a controlled substance (Health & Saf.Code, former § 11379).   Four additional drug charges against him and five such charges against his wife were dismissed.   He was sentenced to five years to life in state prison.  (Tabucchi, supra, 64 Cal.App.3d at p. 137, 134 Cal.Rptr. 245.)   In general, the Indeterminate Sentence Law provided for parole eligibility upon completion of one-third of the minimum term.  (Former § 3049.) 4  However, the offense to which defendant pleaded guilty was subject to a statutory provision that required the defendant to serve a minimum of three years of his sentence before he became eligible for parole.  (Health & Saf.Code, former § 11379, subd. (a).) 5  The defendant was not advised of this mandatory minimum term of imprisonment.  (Tabucchi, supra, 64 Cal.App.3d at p. 142, 134 Cal.Rptr. 245.)   Recognizing the “critical importance to the defendant of the right to parole,” the Tabucchi court held that, “Since it has been a matter of common knowledge for many years that in the usual case, assuming good behavior in prison, a defendant will be eligible for parole after serving one-third of the minimum term of punishment, appellant's assertion that he was under such an impression when he entered his plea is plausible on its face.”  (Id. at p. 143, 134 Cal.Rptr. 245.)

The Tabucchi court's broad characterization of a minimum term before parole eligibility as a “direct” consequence was limited by the Sixth District in a recent case, People v. Huynh (1991) 229 Cal.App.3d 1067, 281 Cal.Rptr. 785 (Huynh), in which the court held:  “We interpret Tabucchi as requiring judicial advice about parole eligibility only where the usual eligibility rules are inapplicable.”  (Huynh, supra, at p. 1081, 281 Cal.Rptr. 785.)   In Huynh, defense counsel stated on the record that the defendant would be eligible for parole in seven years if convicted of second degree murder with personal use of a firearm.   The prosecutor agreed it would be seven or eight years, and the court advised defendant he would be eligible for parole in seven or eight years.  (Id. at p. 1080, 281 Cal.Rptr. 785.)   After a bench trial, the court found the defendant guilty of second degree murder and sentenced him to seventeen years to life in prison.  (Id. at p. 1071, 281 Cal.Rptr. 785.)   However, the trial court did not advise the defendant of the regulations of the Board of Prison Terms (Cal.Code Regs., tit. 15, §§ 2400, 2403, subd. (c)), guidelines under which a defendant convicted of second degree murder by personal use of a firearm would not ordinarily be eligible for parole before two-thirds of seventeen years.   (Huynh, supra, 229 Cal.App.3d at p. 1081, 281 Cal.Rptr. 785.)   The Huynh court reasoned that since the “defendant's possible parole is dependent on the Board of Prison Term's evaluation of his conduct as a prisoner,” the “ordinary minimum term before parole eligibility” is not a direct consequence of a conviction.  (Id. at p. 1082, 281 Cal.Rptr. 785.)   Thus, Huynh would require judicial advisement only where the usual parole rules do not apply.   However, the question remains as to whether the 4/5 Rule is usual within the meaning of Tabucchi as limited by Huynh.

The Fifth District, taking up this question in Cortez, supra, 55 Cal.App.4th 426, 64 Cal.Rptr.2d 71, held that the 4/5 Rule is the “usual eligibility rule,” as that term is used in Huynh, supra, 229 Cal.App.3d at page 1081, 281 Cal.Rptr. 785 (italics added), and therefore is not a direct consequence of a guilty plea.  (Cortez, supra, at p. 431, 64 Cal.Rptr.2d 71.)   The defendant argues for the opposite result and, in the circumstances of this case, we agree.

In Cortez, the defendant was charged with one count of forcible rape (§ 261, subd. (a)(2)), and one count of inflicting corporal injury on a cohabitant (§ 273.5).   The information alleged that the defendant had a prior serious felony conviction.   The defendant pled guilty to the section 273.5 offense and admitted his prior serious felony in exchange for a mitigated two-year term of imprisonment.  (Cortez, supra, 55 Cal.App.4th at pp. 428-429, 64 Cal.Rptr.2d 71.)   As in the instant case, the defendant was sentenced under the Three Strikes law but was not advised of the 4/5 Rule prior to entering a guilty plea.  (Ibid.)  At the time scheduled for sentencing, the defendant informed the trial court that he wanted to file a motion to withdraw his guilty plea because he had not been advised as to the 4/5 Rule. The trial court denied the motion to withdraw the guilty plea and sentenced the defendant to four years in prison.  (Id. at p. 429, 64 Cal.Rptr.2d 71.)   The Court of Appeal concluded that the 4/5 Rule was “usual” under Huynh because it is a normative provision of the Three Strikes law, and therefore “applies to all persons sentenced thereunder.”  (Cortez, supra, 55 Cal.App.4th at p. 431, 64 Cal.Rptr.2d 71.)

We disagree with this conclusion as it fails to address the troubling prospect of a lack of notice where the prosecution negotiates a guilty plea with a defendant under a new and different sentencing scheme.   The Tabucchi court emphasized the important role of notice in the defendant's effective understanding of the punishment he would receive by pleading guilty.   (Tabucchi, supra, 64 Cal.App.3d at p. 142, 134 Cal.Rptr. 245.)   Consequently, the court defined “usual” in terms of the “widespread knowledge of persons charged with crime.”  (Id. at p. 143, 134 Cal.Rptr. 245) Where the actual parole eligibility deviated from the widely understood eligibility scheme of the Adult Authority, the court held that “notice to a defendant of any statutorily required minimum term for parole eligibility ․ contrary to and of greater duration than the usual Adult Authority policy ․ is constitutionally required․”  (Tabucchi, supra, 64 Cal.App.3d at p. 143, 134 Cal.Rptr. 245;  see also In re Ronald E. (1977) 19 Cal.3d 315, 324, 137 Cal.Rptr. 781, 562 P.2d 684 [Boykin-Tahl is satisfied if “the record demonstrates that the accused had fair notice of what he was being asked to admit.”].)

A similar problem has arisen in the instant case.   The Three Strikes statute, as signed into law in March of 1994, is a complicated piece of legislative reform.   Although there was much public debate surrounding its enactment, it is unlikely that those debates alone effectively educated the general public to the extent that the new law can yet be said to be in any sense “usual.”   Since the Three Strikes sentencing provisions are a major departure from the previous, widely understood sentencing scheme, we conclude that it is unusual within the meaning of Tabucchi.

The Cortez court inappropriately analogized the 4/5 Rule to the Board of Prison Terms regulations at issue in Huynh.   Under the regulations, the actual post-conviction credit received by a defendant is contingent on many factors, including the defendant's conduct, performance in work assignments, and participation in rehabilitative programs.  (Cal.Code Regs., tit. 15, § 2410, subd. (c).)  The regulations are guidelines only and not statutorily mandated minimum prison terms:  “This section provides guidelines for granting credit but a panel may grant more or less credit as appropriate.”  (Id., § 2410, subd. (a).)  The general provisions applicable to the defendant in Huynh suggested four months per year (one-third) post-conviction credits rather than the usual two-thirds credits.   However, the Board retained the discretion to grant more or less “when the prisoner's performance, participation or behavior warrants such adjustment of credit.   Less than 4 months credit may be granted if the prisoner fails to meet the general expectations set forth in Section 2410(c).   More than 4 months credit may be granted if the prisoner demonstrates exceptional performance in a work assignment, exceptional participation in self-help or rehabilitative programs, or other exemplary conduct.”  (Id., § 2410, subd. (b).)  Therefore, the actual post-conviction credits awarded to a given defendant under the regulations depended in great part on how the Board exercised its broad discretion.   The trial court could not accurately forecast how the Board of Prison Terms would exercise its discretion with respect to the defendant.   Accordingly, the Huynh court appropriately held it would not “require trial courts to read the Board of Prison Term's parole eligibility regulations to defendants in anticipation of a guilty plea.”  (Huynh, supra, 229 Cal.App.3d at p. 1083, 281 Cal.Rptr. 785.)

The 4/5 Rule is distinguishable from the guidelines at issue in Huynh.   While the operation of those guidelines is highly contingent and discretionary, the 4/5 Rule operates uniformly as a matter of law.   No one, not even the sentencing court, possesses discretion to adjust the minimum term of imprisonment mandated by the Three Strikes law after the sentence is imposed and executed.   Therefore, every defendant sentenced under Three Strikes is subject to precisely the same parole eligibility provisions:  Each defendant will serve at least four-fifths of his or her presentence sentence.

The 4/5 Rule is more closely analogous to the three-year minimum-term requirement (Health & Saf.Code, former § 11379) at issue in Tabucchi.   Both are rules of uniform application which operate to increase the minimum prison term that must be served prior to parole.   Moreover, like former section 11379, the 4/5 Rule applies to all defendants sentenced under the statute.   Both are unusual in the sense that they are exceptions to the default sentencing scheme applicable to the majority of defendants.   Moreover, both are likely to result in prejudice to defendants who are familiar with the default sentencing scheme and who are not aware of the consequences of being sentenced under the special statute.

In sum, we hold that the 4/5 Rule falls within the Boykin-Tahl-Bunnell requirement of advisement as to sentencing range and other direct consequences of a guilty plea.   At a minimum, trial courts must advise second-strike defendants who are sentenced under the Three Strikes law that, in consequence of their plea or submission, they will serve a minimum of four-fifths of their sentence before becoming eligible for parole.   Compliance with this requirement will not unduly burden trial courts.   Here, as in Bunnell, “The additional burden, if any, will be far outweighed by the benefits of assuring criminal defendants that the full panoply of constitutional and statutory rights provided by our system of criminal justice is available to them and by our attempt to insure that any waiver thereof by defendants is both voluntary and intelligent.”  (Bunnell, supra, 13 Cal.3d at pp. 605-606, 119 Cal.Rptr. 302, 531 P.2d 1086.)

B. Prejudice

 However, our conclusion that an advisement is required here is not the end of the inquiry.   In order to obtain relief, appellant must demonstrate prejudice.   In People v. Wagoner (1979) 89 Cal.App.3d 605, 152 Cal.Rptr. 639 (Wagoner), the court held that a defendant must demonstrate prejudice from the trial court's failure to advise him of a direct consequence of his plea:  “He must make a showing ․ that he did not know of the direct consequences of the plea and, had he known, he would not have pleaded guilty.”  (Id. at p. 611, 152 Cal.Rptr. 639.)   In Wagoner, the appellant did not demonstrate on the record that he would have entered a different plea if he had been properly advised.  (Id. at p. 612, 152 Cal.Rptr. 639.)   The Wagoner court contrasted this situation with Tabucchi, in which the defendant had made an affirmative statement on the record that he would not have entered his plea had he been properly advised.  (Wagoner, supra, at p. 612, fn. 1, 152 Cal.Rptr. 639.)

 Here, as in Tabucchi, the appellant stated on the record, and under penalty of perjury, that he would not have entered his plea of guilty if he had been properly advised as to the effect of the 4/5 Rule. Moreover, in this case, appellant reasonably believed he would be eligible for parole after serving half of his sentence, for a maximum of 36 months served prior to parole eligibility.   He was, however, actually sentenced to a term of 6 years and, under the 4/5 Rule, would have to serve more than 57 months prior to parole eligibility.   Since appellant was required to serve, as a statutorily-mandated minimum term, 21 months more than the highest minimum term he believed he would receive in consequence of his plea, we conclude there was sufficient prejudice to warrant reversal.

II. Ineffective Assistance Of Counsel **


For the foregoing reasons, the judgment of conviction is reversed and the matter remanded to the trial court with directions to allow appellant to withdraw his plea of guilty, and to reinstate the original charges.


1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Section 1170.12, subdivision (a)(5), is identical to section 667, subdivision (c)(5).

3.   Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (Boykin);  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (Tahl ).

4.   Former section 3049 provided in pertinent part:  “Any prisoner, received on or after January 1, 1948, at any state prison or institution under the jurisdiction of the Director of Corrections, whose minimum term of imprisonment is more than one year, may be paroled at any time after the expiration of one-third of the minimum term.”  (Italics added.)

5.   “Health and Safety Code [former] section 11379, subdivision (a), provides in pertinent part:  ‘․, every person who ․ sells, ․ any controlled substance ․, shall be punished by imprisonment in the state prison for a period of five years to life and shall not be eligible for release upon completion of sentence or on parole or any other basis until he has been imprisoned for a period of not less than three years.’ ”   (Tabucchi, supra, at p. 142, fn. 4, 134 Cal.Rptr. 245.)

FOOTNOTE.   See footnote *, ante.

PHELAN, Presiding Justice.

PARRILLI and WALKER, JJ., concur.

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Docket No: No. A075711.

Decided: September 24, 1997

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

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