P. v. Simms

Filed 9/28/07 P. v. Simms CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, John V. Meigs, Judge. Reversed with directions.

Steve Cooley, District Attorney, Patrick D. Moran and Natasha S. Cooper, Deputy District Attorneys, for Plaintiff and Appellant.

California Appellate Project, under appointment by the Court of Appeal, and Jonathan B. Steiner, Executive Director, for Defendant and Respondent.

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The People appeal from an order granting Antoine Simmss petition for a writ of habeas corpus on the ground of ineffective assistance of trial counsel. The People contend that the writ was improperly granted because the order was based solely on arguments raised in Simmss traverse and no evidentiary hearing was held. We conclude that an evidentiary hearing should have been ordered and reverse on that basis.

BACKGROUND

Simms was charged by information with carrying a loaded firearm and being a convicted felon in possession of a firearm. The information further alleged that Simms had suffered five prior convictions on which separate prison terms had been served and three prior convictions under the Three Strikes law.

The information followed a preliminary hearing. At that hearing, Inglewood Police Officer Max Koffman testified that at approximately 2:55 a.m. on November 8, 2000, he and his partner conducted a traffic stop of a vehicle with two people inside. Koffmans partner approached the driver and Koffman approached Simms, who was sitting in the front passenger seat. As Koffman did so, Simms started to get out of the car. Koffman told him to stay inside but the passenger door continued to open and Koffman shoved it closed with his foot. Simms opened the door again a few moments later, whereupon Koffman drew his pistol and pointed it at Simms. Koffmans testimony continued that, as [Simms] got out, I could see his right hand. I could not see his left hand. He looked directly at my pistol. Had a shocked look on his face, dropped something; and I heard a thud on the floor. [] . . . [] . . . I looked on the floor, and I saw a small caliber semi-automatic pistol on the floorboard of the car. Koffman retrieved the pistol and determined that it was loaded.

On cross-examination by Simmss trial counsel, Ron Rothman, Koffman testified that he told Simms to stay in the car about five times in a loud tone of voice. Koffman, who was about eight feet away, did not observe Simms manifesting the symptoms of being under the influence of alcohol. Koffman saw [Simms] release something, heard a thud on the floorboard of the vehicle, and immediately saw a gun sitting on the floorboard.

In the trial court, Attorney Rothman filed a motion on Simmss behalf to dismiss strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). In arguing the motion, Rothman conceded that Simms had an extensive criminal record but noted that the charged crimes were not malum in se but malum prohibitum, that Simmss mother suffers from psychological problems, that Simms was taking medication, and that Simmss most recent prior conviction was eight years old. The People argued that Simms was undeserving of leniency for various reasons, including that he had been discharged from parole only nine days before the incident in this case. The trial court denied the Romero motion (and in so doing referred to a sentence of 25 years to life, 80 percent of which would have to be served).

On March 30, 2001, the day after denial of the Romero motion, Simms entered a negotiated plea of guilty to carrying a loaded firearm and admitted the three alleged strike convictions. In exchange, the allegation of convicted felon in possession of a firearm and the prior convictions on which he had served prison terms were dismissed. Simms was sentenced to 25 years to life in prison.

On December 17, 2001, Simms submitted to the trial court in propria persona a petition for a writ of habeas corpus. The petition alleged that he had been denied effective assistance of trial counsel because counsel failed to request a hearing on Simmss mental competency. Simms additionally alleged that trial counsel erroneously advised him that he would serve no more than 15 years with good behavior and failed to investigate all the surrounding facts of the case on the day in question (testimony of other occupants in the car; condition of petitioner at the time of arrest; proximity of the officer to the car; exact location of the weapon in relation to where petitioner was sitting).

In an order filed December 29, 2005, the trial court acknowledged that Simmss petition had been misplaced and that, under a provision of the California Rules of Court applicable when the petition was filed, an order to show cause was deemed to have been issued based on the absence of a timely response to the petition.

The People filed a return in which it was noted that in entering his plea, Simms personally acknowledged that he understood he would be sentenced to 25 years to life. A declaration from Attorney Rothman was included with the return. In it, Rothman stated that he did not tell Simms that Simms would spend 15 years in prison and did not advise him of the possibility of early release for good behavior; that given Simmss extensive criminal background and in the absence of a defense to the charged offenses, the dismissal of the five one-year prior convictions was an acceptable deal; and that Simms never indicated that he did not understand the proceedings or could not cooperate with counsel.

Counsel was appointed to represent Simms on habeas corpus. Through counsel, Simms filed a traverse to the Peoples return. In it, Simms argued that Rothman rendered ineffective assistance by failing to cross-examine adequately Officer Koffman at the preliminary hearing; by failing to make any discovery or other pretrial motions; by making a conciliatory and weak argument on the Romero motion; by failing to attack the strike prior convictions on the ground that the record of those convictions did not reflect Simms had been warned that the convictions could have future consequences; and by failing to argue that one of the strike prior convictions was not supported by sufficient evidence.

The People filed a supplemental return in response to the traverse. In it, the People argued that case law prohibited Simms from attacking the validity of his prior convictions in a petition for a writ of habeas corpus and that Simms had improperly raised issues in the traverse that were not addressed in the petition.

The writ petition came on for hearing on August 2, 2006, before the Honorable John V. Meigs. (In 2000 and 2001, Judge Meigs had presided at the preliminary hearing and the Romero motion and had taken Simmss plea.) The court stated its tentative ruling was to grant the petition and permit Simms to withdraw his plea, and to do so on grounds other than those relating to Simmss competency to stand trial. The People argued that Simms had failed to demonstrate ineffective counsel because the evidence against Simms was strong, Simmss criminal record militated against Romero relief, and Rothman had negotiated a deal in which the five one-year prior convictions were dismissed. Simms argued that the case against him was triable and that Rothman had failed to check that the strike prior convictions were valid. The People responded that if the court were inclined to grant the petition, an evidentiary hearing would be required.

The court ruled: I dont believe that there are disputable facts to be resolved in an evidentiary hearing. The motion will be granted. The court will allow the defendant to withdraw his plea.

The People appealed.

DISCUSSION

On appeal, the People argue that the trial court was without jurisdiction to grant habeas relief on grounds that were first raised in the traverse, that the court erred in refusing to conduct an evidentiary hearing, and that Simms was not denied effective counsel.

Simms responds that the arguments in the traverse were properly considered as if raised in a supplemental or amended petition and that the People waived objection to the arguments by failure to raise the issue orally during the hearing and to insist on a ruling. As to the issues regarding the need for an evidentiary hearing and Rothmans performance, Simms argues that ineffective assistance was demonstrated without the need for an evidentiary hearing based the following undisputed facts: Rothmans cross-examination of Officer Koffman at the preliminary hearing was inadequate; Rothman failed to file any motions; Rothman failed to realize that one of the strike prior convictions was invalid; Rothman effectively abandoned Simms with respect to the Romero motion; Rothman failed to realize that only four, rather than five one-year prior convictions had been alleged (a contention that is being raised for the first time on appeal); Rothman failed to correct the trial court when it stated at the Romero hearing that Simms would have to serve 80 percent (rather than 100 percent) of a 25-year-to-life sentence; and Rothmans plea bargain was no bargain at all because Simms was under the impression that he was lowering his exposure from 30 years to 20 years before being eligible for parole, a total of 10 years, when he was, in fact, lowering his time before being eligible for parole from 29 years to 25 years, a total of four years.

We decline to address the Peoples jurisdictional contention. Even if the argument is valid, Simms would be able to file another petition for a writ of habeas corpus in the trial court, again raising his arguments regarding ineffective counsel. Accordingly, we turn to the ineffective assistance issues raised in this appeal.

To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.] [Citation.] (In re Roberts (2003) 29 Cal.4th 726, 744745.)

It is well settled that where ineffective assistance of counsel results in the defendants decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.] [I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsels incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. [Citation.] (In re Alvernaz (1992) 2 Cal.4th 924, 934.) Thus, where a defendant declares that a guilty plea would not have been entered if counsel had provided competent advice, that declaration must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims. (Id. at p. 938.)

Unaddressed on this record is whether a reasonably competent attorney would have managed discovery, cross-examination at the preliminary hearing, or the Romero motion any differently than Rothman. (Cf. People v. Frierson (1979) 25 Cal.3d 142, 159160 [opinions of experienced attorneys considered on issue of standards of performance]; People v. Sanders (1990) 221 Cal.App.3d 350, 365366 [same].) More important, and with respect to all of Simmss claims of ineffective assistance, given that Simms did not tender his declaration addressing the issues on which habeas corpus appears to have been granted either as part of his original petition or in a supplemental submission, he has failed to demonstrate prejudice.

No doubt, a reasonably competent attorney would not fail to challenge prior convictions that were improperly pleaded or not supported by the evidence and perhaps should have known that Simms would have to serve a minimum of 25 years on the 25‑years-to-life sentence. But even assuming that Simms did not receive competent representation with respect to the unavailability of conduct credits or the number of one-year prior convictions available to enhance his sentence, there is nothing in the record to show that Simms would have elected to go to trial and risk the greater sentence associated with the valid one-year prior convictions had he been accurately presented with all the relevant information. Indeed, unlike the situation contemplated in In re Alvernaz, supra, 2 Cal.4th at page 938, the record here lacks any assertion from Simms (on which independent corroboration would be required) that he would not have entered a plea but for the incompetent advice of counsel. Accordingly, and regardless of whether the trial courts order is reviewed under a substantial evidence or a de novo standard, the trial court erred in granting Simmss petition for a writ of habeas corpus in the absence of an evidentiary hearing. (See In re Serrano (1995) 10 Cal.4th 447, 456; People v. Romero (1994) 8 Cal.4th 728, 739.)

DISPOSITION

The order under review is reversed, and the matter is remanded for an evidentiary hearing on the petition for a writ of habeas corpus.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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