IN RE: Steven Gary HOWARD on Habeas Corpus (1986)

Steven Howard was convicted by a jury of false imprisonment by violence, menace, fraud or deceit (Pen.Code, §§ 236,  237; 2), forcible oral copulation (§ 288a, subd. (c)), forcible sodomy (§ 286, subd. (c));  spousal rape (§ 262, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)), all committed against his estranged wife, Verdise.³  He was sentenced to a total term of twelve years in prison.   He appeals from the judgment and also petitions for writ of habeas corpus, which has been consolidated for disposition with this appeal.

Steven contends that there were repeated instances of prosecutorial misconduct, erroneous jury instructions and a failure to give him a Miranda warning before an interrogation.   His petition for writ of habeas corpus alleges ineffective assistance of counsel.

FACTUAL BACKGROUND

Steven and Verdise Howard were married on August 31, 1980.   They physically separated and began living in separate residences in March of 1983.

On July 15, 1983, Verdise contacted Steven to arrange to pick up a child support check from him.   She arrived at Steven's residence at 9:00 that evening.   After writing the check and handing it to her, Steven demanded that she disrobe.   When Verdise refused, Steven produced a knife and again ordered her to take off her clothes.   Verdise disrobed and pulled on Steven's penis, which he reacted to by slashing the knife at her.   She received several superficial cuts to her hands.

Steven ordered Verdise onto the bed and placed her in handcuffs that were attached to the bedframe.   Verdise submitted to this out of fear.

At her earliest opportunity Verdise fled the apartment clad only in a bathtowel.   Not finding a nearby friend at home, she reported the offenses to the police.   He was subsequently arrested at his home.

DISCUSSION *

I

PROSECUTORIAL MISCONDUCTII *JURY INSTRUCTIONS IV *MIRANDA RIGHTSVWRIT PETITION

In his petition for writ of habeas corpus, Steven alleges ineffective assistance of counsel based on his trial attorney's failure to move to suppress evidence obtained by the police as a result of a warrantless search of his residence.   The seized items included a knife, a pair of handcuffs and bloodstained bedding.   Not only was the evidence itself incriminating but the locations where it was found allowed the prosecutor to argue to the jury that Steven intentionally concealed the evidence and thereby demonstrated consciousness of his guilt.

The record provides no satisfactory explanation for counsel's failure to move to suppress the evidence.   Normally under such circumstances we would issue the writ to enable the superior court to conduct an evidentiary hearing at which defense counsel would be afforded the opportunity to explain his conduct.  (See People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)   Citing People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144 and Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, however, the People urge that such an evidentiary hearing is unnecessary because it is not “reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.”  (Fosselman, supra, 33 Cal.3d at p. 584;  see also Strickland supra, 466 U.S. at p. 694, 104 S.Ct. at p. 2068.)   In support of this argument, the People point to a variety of other evidence in the case which they suggest makes it unlikely the jury would have reached a different conclusion even had the seized evidence been excluded.⁴

 Virtually all claims of ineffective assistance focus on particular acts or omissions of trial counsel which the defendant argues affected the result in his trial.   In contrast to claims of a denial of counsel or an attorney conflict of interest (e.g., People v. Mroczko (1983) 35 Cal.3d 86, 197 Cal.Rptr. 52, 672 P.2d 835), these claims both permit and require inquiry into how the  trial would have been different in the absence of the allegedly deficient representation.   The notion that a defendant should be required to establish the probability of a different result does not appear particularly unfair in most cases.   A problem arises, however, in cases such as the present one where counsel's alleged omission has the effect of creating procedural error violative of federal constitutional rights.

It is well established that a criminal conviction cannot be affirmed unless any federal constitutional errors in the procedures leading to the conviction are determined to be harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Thus, an error in admitting evidence seized in violation of the Fourth Amendment must be judged by the Chapman standard.  (People v. Ratliff (1986) 41 Cal.3d 675, 688, 224 Cal.Rptr. 705, 715 P.2d 665;  People v. Minjares (1979) 24 Cal.3d 410, 424, 153 Cal.Rptr. 224, 591 P.2d 514.)   Here, acceptance of the People's argument would result in the following anomalous situation:  if defense counsel failed to move to suppress illegally seized evidence, a reversal would only be warranted if it was reasonably probable a different result would have been reached had the evidence been excluded;  however, if defense counsel made the motion but the court erroneously denied it, the conviction would be reversed unless the reviewing court was convinced beyond a reasonable doubt that the illegally seized evidence did not contribute to the verdict.   In the two situations, the evidence before the jury is exactly the same.   We believe logic requires that the standard of review be the same as well.

In our view, Fosselman's reference to the Watson prejudicial error test (see People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243) does not preclude the conclusion we reach.   To begin with, Fosselman did not even consider an issue involving Chapman error, and as such cannot be read as having decided the issue.   Furthermore, because the circumstances underlying most claims of ineffective assistance of counsel do not implicate federal constitutional rights, Fosselman states the general rule that ineffective assistance claims are subject to the Watson test.   It would be a mistake, however, to mechanically pigeon-hole all ineffective assistance claims in the same category without examining the nature of counsel's error and the effect of that error on the trial.   We hold that if the effect of counsel's error—had it been the result of trial court error—would require that the appellate court apply the Chapman standard on review, a similar standard is applicable to defendant's ineffective assistance claim.⁵

 Reviewing the record in the present case, we cannot say that counsel's failure to bring a suppression motion, if error, was harmless beyond a reasonable doubt.   Accordingly, a writ of habeas corpus will issue  returnable to the San Diego County Superior Court in accordance with the procedure set forth in In re Hochberg (1970) 2 Cal.3d 870, 87 Cal.Rptr. 681, 471 P.2d 1.   The prosecution is directed to show cause before the superior court why the petition for habeas corpus should not be granted.   That court will calendar the matter for an evidentiary hearing to decide whether defense trial counsel acted competently in failing to move to suppress the fruits of the illegal search.  (§ 1538.5.)   Such hearing will include inquiry into whether the omitted suppression motion would have been granted.  (Ante, fn. 4.)   Gary Nelson, Esq., remains counsel for petitioner and shall be responsible for representing petitioner in these proceedings before the superior court.

DISPOSITION

Judgment affirmed.   Writ of habeas corpus granted and transferred to the superior court of San Diego County which shall hold an evidentiary hearing and rule on the merits of the petition.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   Because we are dealing with a husband and wife as defendant and prosecutrix, we will refer to each by their first name.

FOOTNOTE.   See footnote 1, ante.

4.   Pope established “a two-step test for determining the adequacy of counsel:  ‘[Defendant] must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.   In addition, [he] must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.’ ”  (People v. Fosselman (1983) 33 Cal.3d 572, 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)   The question of whether an omitted motion has “substantial merit” (see People v. Haskett (1982) 30 Cal.3d 841, 855, fn. 4, 180 Cal.Rptr. 640, 640 P.2d 776) is a mixed question of fact and law which cannot be resolved on the limited record before us on appeal.   Both the People's argument and our discussion of the prejudice issue assume that a motion to suppress evidence, had it been made by Steven's counsel, would have been granted.   Following an evidentiary hearing, the superior court will be in the best position to evaluate whether Steven's attorney failed to bring a suppression motion having “substantial merit” and thereby rendered ineffective assistance of counsel.

5.   In their petition for rehearing, the People urge that resort to the Watson standard is mandated not only by Fosselman but also by the U.S. Supreme Court's recent decision in Strickland v. Washington, supra, 466 U.S. 668 which, they claim, adopted an identical standard for evaluating claims that ineffective assistance of counsel violated the accused's Sixth Amendment rights.   It is not at all clear, however, that the Strickland test is identical to the Watson standard.   While the language of the two tests is certainly similar (Strickland:  “reasonable probability”) v. Watson:  “reasonably probable”), Strickland specifically held that the test was not to be interpreted as requiring a showing that a different result was “more likely than not.”  (466 U.S. at pp. 693–694, 104 S.Ct. at 2067–2068.)   The Watson standard, on the other hand, has at least been applied in a manner closely approximating the “more likely than not” test.  (See, e.g., Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 897, 103 Cal.Rptr. 856, 500 P.2d 880;  People v. Parks (1971) 4 Cal.3d 955, 961, 95 Cal.Rptr. 193, 485 P.2d 257;  People v. Hill (1967) 67 Cal.2d 105, 119, 60 Cal.Rptr. 234, 429 P.2d 586;  People v. Williams (1986) 180 Cal.App.3d 57, 63, 225 Cal.Rptr. 498;  People v. Prantil (1985) 169 Cal.App.3d 592, 610, 215 Cal.Rptr. 372;  People v. Barrow (1976) 60 Cal.App.3d 984, 995, 131 Cal.Rptr. 913;  but see People v. Ross (1967) 67 Cal.2d 64, 84, 60 Cal.Rptr. 254, 429 P.2d 606, (dis. opn. of Traynor, C.J.).)In any event, Strickland like Fosselman involved ineffective assistance claims which did not in any way implicate the Chapman standard of prejudice.   It is a fundamental principle of jurisprudence that an opinion is not authority for propositions not considered.  (E.g., In re Tartar (1959) 52 Cal.2d 250, 258, 339 P.2d 553.)   Because the anomaly presented by the circumstances of this case was not suggested in either Strickland or Fosselman, we do not view the general principles established by those cases as precluding the limited exception we recognize here.

WEINER, Acting Presiding Justice.

WORK and JONES, JJ.*