Filed 8/30/18 P. v. Edwards CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The jury was unable to reach a unanimous verdict on the trial of defendant Jason C. Edwards (Edwards) on two counts of oral copulation and two counts of lewd conduct, all involving his girlfriend’s two minor daughters. Shortly before the retrial, the prosecution offered a plea deal in which Edwards would plead guilty to one count of lewd conduct, serve a prison term of six years, register as a sex offender (Pen. Code, § 290)[1] and possibly be subject to commitment as a sexually violent predator (Sexually Violent Predators Act (Welf. & Instit. Code, § 6600, et seq.)). Defense counsel replied to the prosecutor that Edwards was unlikely to agree and did not communicate the offer to Edwards. At the retrial, the jury convicted Edwards on all counts, and the judge sentenced Edwards to 38 years to life in state prison. The parties agree that defense counsel provided constitutionally ineffective representation when she failed to inform him of the prosecution’s plea offer, but dispute whether there was a reasonable likelihood Edwards would have accepted the plea. The trial judge decided Edwards did not meet his burden of demonstrating prejudice and denied the motion for a new trial. We affirm.

BACKGROUND

1. Proceedings at Trial[2]

An amended information charged Edwards with two counts of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b); Counts 1 and 2) and two counts of lewd conduct with a child under the age of 14 (§ 288, subd. (a); Counts 3 and 4). Edwards retained Amy Morton to represent him. At trial the two alleged victims—the twin daughters of Edwards’s girlfriend—testified to instances of oral copulation of defendant and lewd conduct which occurred when they were five and again when they were eight and nine years old. Edwards testified that he never engaged in any of the conduct the twins described. Morton challenged the girls’ reliability, arguing that their aunt coached them in response to Edwards’s infidelity to her sister. After deliberating for three days, the jury informed the court it was deadlocked on all four counts. Questioned by the trial judge, the jury foreperson indicated that the jury was split seven to five on the oral copulation counts and ten to two on the lewd act counts. After confirming that nothing further would assist the jury in reaching a verdict, the court declared a mistrial. Jurors later advised counsel that as to every count, the majority of jurors voted to acquit.

The People elected to retry the case, but, 12 days before trial was to begin, the assistant district attorney sent defense counsel an email which contained a plea offer:

“I am ready to proceed on Edwards. Offer is one count of PC 288(a), midterm, six years. He already has a couple of years[’] worth of credit I think.” Two days later defense counsel responded with an email: “Not happening. I’ll convey to my client as required but 99.99999% not happening.” There was no further communication between counsel about the offer.

At the second trial[3] the prosecution presented much of the same evidence, including the testimony of the alleged victims, but, for the first time called an expert on the subject of child sexual assault accommodation syndrome. The defense added Dr. Howard Friedman, a neuropsychologist, who evaluated Edwards and testified that Edwards showed no sexual interest in children and that there was no indication that Edwards was trying to be deceptive. Edwards testified and denied all the alleged conduct. In response to questions about his interview with Dr. Friedman, Edwards said: “I was fully honest with him.” On another topic, he testified: “I would never admit to something I didn’t do.” In closing, Morton argued that the victims’ testimony was unreliable. The jury deliberated two days and found Edwards guilty on all four counts.

2. Edwards’s Motion for New Trial

After the second trial, Morton declared a conflict. The court granted her motion to be relieved and appointed the Office of the Alternate Public Defender (New Counsel). New Counsel filed a motion for new trial, alleging Morton had provided ineffective assistance by failing to advise Edwards of the prosecution’s plea offer.

The motion was supported by Morton’s declaration in which she stated that she believed she communicated an offer to Edwards and that “Mr. Edwards rejected the offer in large part, because he denied having any criminal liability for the charges he

faced. [¶] . . . [¶] . . . I remember telling him that the offer was to plead to one count of 2 Pen. Code, §288, with an 8 year sentence. [¶] . . . [¶] . . . I subsequently reviewed my file contents and was asked to locate an e-mail sent to me by Ms. Nguyen reflecting her offer. . . . [¶] . . . [¶] I was very surprised to see that she had offered the mid-term of 6 years state prison. [¶] . . . I can think of no independent corroborating evidence in existence to indicate that I ever conveyed the 6 year offer to my client. [¶] . . . [¶] . . . There is a possibility that I did not convey the proper offer to Mr. Edwards, and that I have substituted a memory in place of an actual event.”

The People opposed the new trial motion, arguing that Edwards failed to demonstrate a reasonable likelihood that he would have accepted the offer. They contended Edwards had maintained his innocence throughout trial, “ ‘motivated by a persistent hope for exoneration.’ ” The People pointed to Morton’s emailed response to the plea offer, in which she wrote that, though she would present the offer to Edwards “as required,” there was a “99.99999” percent chance he would not accept it. They argued that Edwards’s consistent position, his failure to initiate plea negotiations and the absence of a declaration from Edwards showed that he was not amenable to pleading guilty.

The declaration of assistant district attorney Mary Nguyen, counsel at both trials, included the jury votes of seven to five in favor of acquittal on the oral copulation counts and ten to two for acquittal on the lewd act counts. When she informed defense counsel of those favorable votes after the mistrial, Morton appeared “perplexed” that the People would retry Edwards given that outcome. Nguyen stated that the defense never initiated plea negotiations. The People attached the email correspondence between Nguyen and Morton about the plea offer and excerpts from Edwards’s testimony at both trials, in which he denied the allegations.

Edwards filed a supplemental motion for new trial, acknowledging the need to corroborate his claim that he would have accepted the offer, and submitted a declaration which stated that he was never informed of the plea offer until after the second trial concluded. He stated that, after the first trial, he hoped that the People would offer a plea since the prosecutor had learned the defense strategy, making conviction more likely. “At this point I would have taken anything without being a life sentence. [¶] The possibility of being committed to a state hospital after serving my sentence would not have swayed my decision to accept the offer that was relayed to Ms. Morton. As I have always maintained the fact that I am innocent, I would have been confident that the doctors/staff of the facility I was committed to would have been able to easily determine that I’m not a danger to society and I would’ve been released soon thereafter.” He did not ask Morton to initiate plea negotiations, because he was “naïve” and believed it was up to the People to initiate that process. The motion relied on the discrepancy between the offer’s six-year sentence and the risk of a life sentence and argued that a rational defendant, faced with that disparity, would have accepted the offer.

At the evidentiary hearing on the motion, Morton testified that—contrary to her prior written declaration— she was “quite certain” she did not communicate the plea offer to Edwards or instruct anyone else to do so. Morton said that she had not spoken to Edwards before informing the prosecutor that the plea offer was “not happening.” She testified that she “would have broken his arm” to get him to accept it and believed Edwards would have accepted the offer, because he had been a reasonable client who followed her advice.

Morton acknowledged that Edwards had maintained his innocence throughout, including during the evaluation by Dr. Friedman, and that she had no reason to doubt it. She also testified that Edwards never sought to initiate a plea deal. Morton confirmed that she communicated the favorable jury votes to Edwards. Based on those results, she “strongly anticipated” the prosecution would not retry Edwards and was “surprised” when it did. Explaining the tone of her email rejecting the prosecution offer, Morton testified that she believed the prosecution case had “gone south” and that the retrial might not proceed. In response to questions about her prior declaration—which stated that she believed she conveyed the offer—Morton testified that she thought that was the truth. She also testified that—consistent with her practice—she would have advised Edwards at the outset of the representation about the Sexually Violent Predator Act.

At the hearing Edwards’s mother testified that, after the first trial, Edwards told her that he was “tired” and that he did not want to go through a second trial. She testified that she never discussed a plea offer with Morton or with Edwards. She also acknowledged that her son had always maintained his innocence.

Edwards testified that Morton never discussed a plea offer, either for an eight-year or six-year prison term. He again testified that he was innocent and acknowledged that he had always maintained that position. Edwards was aware of the favorable jury votes at his first trial. He never asked Morton to pursue a plea deal on his behalf, assuming the prosecution would make an offer and that the “topic never came up.” But, when asked about an offer, he said “if it was anything short of life, I would have taken it.” He said that he would have accepted the six-year offer, though he knew that it would have required lifetime sex offender registration and the possibility of commitment under the Sexually Violent Predator Act. Citing the difference between a six-year prison term and the exposure if convicted at trial—60 years to life—which was too great to risk, Edwards reiterated that other consequences of the plea deal would not have deterred his acceptance of it, because he was most “concerned with just getting [his] freedom.” In particular, he was not concerned about being evaluated for commitment as a sexually violent predator because he believed doctors would easily conclude he was not a threat. Nor was he concerned about the lifetime requirement that he register as a sex offender. But, in conclusion, he acknowledged that he had previously testified “ ‘I would never admit to something I didn’t do.’ ”

The trial court took the matter under submission and issued a written order denying Edwards’s motion. The court first found that Morton’s failure to convey the plea offer to Edwards constituted deficient performance. Next the court analyzed whether Edwards had been prejudiced, applying the factors set forth in In re Alvernaz (1992) 2 Cal.4th 924, 938 (Alvernaz). The court explained that the first two Alvernaz factors—whether counsel actually communicated the offer to Edwards and what advice, if any, counsel gave him—clearly favored Edwards. As for the third factor—the disparity between the terms of the plea offer and the probable consequences of proceeding to trial, “as viewed at the time of the offer”—the court explained that it considered the disparity here to be, at best, a “neutral objective factor” in light of Edward’s knowledge of the favorable jury votes at his first trial.

However, the court found the fourth Alvernaz factor—whether Edwards indicated he was amenable to negotiating a plea bargain—decisive. The court found no objective evidence that Edwards had been amenable to a plea deal or that he would have willingly accepted the severe accompanying consequences. The court disputed Edwards’s post-trial “unequivocal” statements that he would have accepted the offer if made aware of it and that he would have willingly accepted all of its consequences. The court recalled that Edwards had “testified forcefully in the presence of this Court that he was innocent of all the charges” and found his trial testimony that he “would never admit” something he did not do to be consistent with Edwards’s failure to seek a plea bargain. The court found Edwards understood the charges against him and denied any culpability during the evaluation by Dr. Friedman, as he did at trial and with Morton and his mother. The court rejected Morton’s claim that she would have “broken” Edwards’s arm to get him to accept the offer: “When provided with the only offer ever conveyed to resolve the trial in the history of the case, Ms. MORTON opined she was ‘99.99999%’ certain that her client would not accept a plea agreement.” The court concluded Edwards had “failed to meet his burden of proof to establish objective evidence that he would have accepted the proffered plea bargain offer” and denied the motion.

The court sentenced Edwards on October 7, 2014, and Edwards filed a notice of appeal the same day.

DISCUSSION

On appeal, the parties do not dispute the trial court’s finding that Edwards’s trial attorney performed deficiently by failing to convey the plea offer to Edwards. Edwards contends only that the trial court erred by concluding he did not demonstrate resulting prejudice, i.e., a reasonable likelihood that he would have accepted the plea offer if informed of it. We disagree.

1. Legal Principles

1. Standard of Review

“Whether trial counsel performed competently, that is, ‘reasonabl[y] under prevailing professional norms’ [citation], presents a mixed question of fact and law. Such questions are ‘generally subject to independent review as predominantly questions of law—especially so when constitutional rights are implicated’—and ‘include the ultimate issue, whether assistance was ineffective, and its components, whether counsel’s performance was inadequate and whether such inadequacy prejudiced the defense.’ ” (In re Resendiz (2001) 25 Cal.4th 230, 248–249 (Resendiz), overruled on another ground in Padilla v. Kentucky (2010) 559 U.S. 356, 370–371.)

“While our review of the record is independent and ‘we may reach a different conclusion on an independent examination of the evidence . . . even where the evidence is conflicting’ [citation], any factual determinations made below ‘are entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.’ [Citations.] On the other hand, if ‘our difference of opinion with the lower court . . . is not based on the credibility of live testimony, such deference is inappropriate.’ ” (Resendiz, supra, 25 Cal.4th at p. 249.)

2. Ineffective Assistance Claims

A defendant claiming ineffective assistance of counsel has the burden to demonstrate, by a preponderance of the evidence, that he is entitled to relief on grounds of ineffective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) The two-part Strickland v. Washington[4] test applies to claims of ineffective assistance of counsel during the plea negotiation process. (Lafler v. Cooper (2012) 566 U.S. 156, 162–163 (Lafler); Hill v. Lockhart (1985) 474 U.S. 52, 58–59 (Hill); Alvernaz, supra, 2 Cal.4th at pp. 933–934.) To establish such a claim, a defendant must show (1) that defense counsel’s performance fell below an objective standard of reasonableness under the prevailing norms of practice, and (2) a reasonable probability that, but for the ineffective performance, the result would have been more favorable to the defendant. (Hill, supra, 474 U.S. at pp. 58–59; Alvernaz, supra, 2 Cal.4th at pp. 936–937.)

“To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.” (Alvernaz, supra, 2 Cal.4th at p. 937; Lafler, supra, 566 U.S. at p. 164.) However, “in reviewing such a claim, a court should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain.” (Alvernaz, supra, 2 Cal.4th at p. 938.) “In this context, a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.” (Ibid.)[5]

2. Analysis

We begin our analysis recognizing that, “any factual determinations made below ‘are entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.’ ” (Resendiz, supra, 25 Cal.4th at p. 249.)

The court evaluated Morton’s representation between the two trials. It is undisputed that the People conveyed a settlement offer to Morton. The trial judge found that Morton either “factually communicated an incorrect offer” or “failed completely to communicate any offer” and that—under either scenario—“Morton has unequivocally fallen below an objective standard of care for a competent criminal defense practitioner, let alone a certified criminal law specialist.” His finding and conclusion, with which we agree, satisfies the first Alvernaz prong.

To decide the second prong—whether the result would have been more favorable to the defendant—Alvernaz identifies four factors, each of which the court considered and applied in reaching its decision: “whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.” (Alvernaz, supra, 2 Cal.4th at p. 938.)

The court also found that, in his attempt to establish prejudice, Edwards satisfied the first and second Alvernaz factors: Morton either failed to communicate the offer or did so ineffectively, and she did not advise him of its consequences as compared to the alternative of a second jury trial. The court properly evaluated the third factor—the disparity between the offer’s terms and the probable trial outcome—“as viewed at the time of the offer.” (Alvernaz, supra, 2 Cal.4th at p. 938.) Whereas at the hearing, both Edwards and Morton focused on the difference between the offered six-year prison term and the maximum potential sentence upon conviction of all charges, the issue had to be considered in the context of the first trial. The court observed that Edwards knew that seven jurors voted to acquit him on the oral copulation counts, and ten voted to acquit on the lewd act counts. Given the favorable jury vote at the first trial, and with the addition of Dr. Friedman, the court treated the third factor as “at best neutral.”

In that context, even if the second trial did not result in acquittal, it was not unreasonable to anticipate that at least one juror in the second trial would have reasonable doubt leading to a second mistrial. And, while Edwards discounted the possibility of sexual violent predator commitment and the onerous consequences of Penal Code section 290 registration, the court did not. Balancing these factors at the time the offer was made, we agree that as the third criterion, was “at best a neutral objective factor” and arguably weighed against Edwards.

In light of all of the evidence, the court found that Edwards did not “meet his burden to establish that—had it been communicated—he would have accepted the plea deal when it was offered. We accord the court’s findings “great weight” and find that they are “supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.” (Resendiz, supra, 25 Cal.4th at p. 249.)

It is undisputed that Edwards never asked Morton to seek a plea offer. Presumably, Morton’s knowledge of her client and his commitment to his innocence were factors which led Morton to reply to the email as she did: “Not happening. I’ll convey to my client as required but 99.99999% not happening.” The trial court heard Edwards’s new-trial hearing testimony that he would have accepted the offer—with the consequence of lifetime registration and the risk of sexual violent predator commitment—but also heard him testify, both at trial and at the hearing, to his innocence and that he would never admit to something he didn’t do. The court considered Dr. Friedman’s testimony about Edwards’s steadfast insistence of his innocence and that he did not find evidence that Edwards was trying to be deceptive.

The record, and the judge’s reasonable inferences from the evidence, establish that Edwards was motivated primarily by a “persistent, strong, and informed hope for exoneration” at trial and did not meaningfully consider alternative dispositions. Both Morton and Edwards knew that the results of the mistrial favored an acquittal on all counts or, at a minimum, another mistrial. Morton acknowledged that, based on this knowledge, she did not expect the prosecution to retry Edwards and was surprised when it did. Morton also testified to her belief that the plea offer indicated the prosecution’s case had otherwise weakened (“gone south”), reducing the likelihood of a retrial (let alone a conviction) even further. The evidence supports the inference that Morton and Edwards anticipated either not facing, or prevailing at, any retrial—either with an acquittal or another mistrial.

Notwithstanding his post-trial testimony to the contrary, the record supports the judge discrediting Edwards’s statements that he would have willingly accepted both the lifetime registration requirement and the risk of sexually violent predator commitment. The trial court doubted that Edwards would have been unconcerned about lifetime registration under the Sex Offender Registration Act (§ 290, et seq.) and the risk of evaluation and possible commitment under the Sexually Violent Predators Act (Welf & Instit. Code, § 6600, et seq.). The record here evinces no contemplation, and little understanding, of these additional consequences by Edwards. The judge, who heard Edwards’s testimony, both at trial and at the new trial motion hearing, was in the best position to judge Edwards’s credibility and found it wanting. We defer to that determination on appeal. (Resendiz, supra, 25 Cal.4th at p. 249.)

“[A]n additional factor pertinent (although not dispositive) in determining prejudice may be the defendant’s stance at trial.” (Alvernaz, supra, 2 Cal.4th at p. 940.) The Alvernaz court explained, “[P]rotestations, under oath, of complete innocence may detract from the credibility of hindsight” prejudice claims. (Ibid.) Here, Edwards testified, unequivocally, at both trials that he had not committed any of the alleged acts—a stance he maintained with his family, his counsel, the defense expert, the court, and the jury throughout the two trials. Edward’s unwavering claim of innocence, together with the other evidence, undercuts the credibility of his claim that he would have readily admitted his guilt and accepted the plea offer and all of its consequences.

The record supports the trial court’s finding that Edwards did not demonstrate a reasonable likelihood that he would have accepted the offer.[6] Our independent review of the record leads to the same conclusion: Edwards did not satisfy the burden of proving that Morton’s ineffective assistance in failing to advise him of the plea offer was prejudicial. The trial court properly denied Edwards’s motion for new trial.

DISPOSITION

The judgment is affirmed.

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Ross, J. *

We concur:

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Siggins, P.J.

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Pollak, J.

A143581