P. v. Perry
Filed 1/21/14 P. v. Perry CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DONTAE JAMAR
PERRY,
Defendant and Appellant.
___________________________________
In re
Dontae Jamar Perry
on
Habeas Corpus.
B239267
(Super. Ct. No. YA078780)
ORDER MODIFYING OPINION
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
B249679
THE COURT:
It
is ordered that the opinion filed
herein on December
19, 2013, be modified as follows:
1. On page 4, line 19, the first sentence of
the second full paragraph, beginning “On May 4, 2010,â€
the year “2010†is changed to “2011â€.
2. On page 4, at the end of the third full
paragraph ending with the words “based on the calls,†add as footnote 3, the
following footnote, which will require renumbering of all subsequent footnotes:
3 Although the parties’
discussions with the trial court at
the pretrial proceedings occurring on
May 4 and 25, 2011, are significant to resolution of the issue presented on
appeal, transcripts of those hearings
were not included in the Reporter’s Transcript on appeal. Fortunately,
however, the relevant portions of the Reporter’s Transcript are attached to the
People’s opposition to Perry’s motion for a new trial, which is included in the
Clerk’s Transcript and is therefore
part of the appellate record.
[There
is no change in the judgment.]
Appellant’s
petition for rehearing is denied.
Filed 12/19/13 P. v. Perry CA2/3 (unmodified version)
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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DONTAE JAMAR
PERRY,
Defendant and Appellant.
___________________________________
In re
Dontae Jamar Perry
on
Habeas Corpus.
B239267
(Los Angeles County
Super. Ct. No.
YA078780)
B249679
APPEAL
from a judgment of the Superior Court of Los Angeles County, Steven R. Van Sicklen, Judge.
Affirmed.
petition for writ of habeas
corpus. Denied.
David
L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant
and appellant Dontae Jamar Perry appeals from the judgment entered following a
jury trial that resulted in his convictions for inflicting corporal injury on a
cohabitant and multiple counts of disobeying a domestic relations court
order. The trial court sentenced Perry
to 15 years in prison. Perry contends
his trial counsel performed ineffectively, leading to the loss of a favorable
plea deal, and seeks reversal of the judgment.
In his petition for a writ of habeas corpus, which we consider
concurrently with his appeal, Perry reiterates his ineffective assistance of
counsel argument. Discerning no
reversible error, we affirm the judgment and deny the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On December 28,
2009, Perry and Lisa Andrews had been dating for five years and
living together in Los Angeles for two
years. That evening, the couple became
embroiled in an argument that turned physical.
Perry punched Andrews in the face several times with his fist, breaking
her jaw in two places. He dropped her
off at an emergency room, and she underwent surgery. She declined to press charges.
At trial, Andrews testified that she was the aggressor in the
incident and Perry had been defending himself.
She had inaccurately told sheriff’s deputies, a doctor, and a social
worker that Perry punched her several times in the face. She explained at trial that she had lied to
officials because she was angry at Perry for cheating on her, and did not want
to be charged with domestic violence and risk losing her children.
On November 27, 2010, Perry and Andrews argued
about finances in the bedroom of Andrews’s Palmdale residence. Perry grabbed Andrews by the back of the
neck, pushed her face into the bed, and held her down for three to four
minutes. Andrews yelled for him to let
her go. One of Andrews’s children called
911. A deputy sheriff who responded to
the call looked through a window and observed Perry holding Andrews down on the
bed by her neck, and heard her yelling for him to release her. He arrested Perry.
At trial, Andrews testified that
Perry had grabbed the back of her head, but did nothing more during the
incident.
On December 2, 2010, the trial court issued a
protective order, pursuant to Penal Code section 136.2,
coming within 100 yards of her during pendency of the prosecution. The order was personally served on Perry. However, between the date the order was
issued and April 20, 2011, Perry
telephoned Andrews over 800 times. One
hundred twenty nine (129) of the calls were completed. During the calls Perry told Andrews that he
loved her, talked about getting married, and said only she could save him. Recordings of some of the calls were played
for the jury. Andrews testified that she
willingly participated in the telephone conversations.
An expert
testified that victims of domestic abuse “accommodate to the abuse that they
are experiencing in their intimate relationships,†often fail to report abuse,
return to their abusers, lie for them, protect them, and recant their stories.
2. Procedure.
Trial was by jury.
Perry was convicted of inflicting corporal injury upon a cohabitant (§
273.5, subd. (a), count 1), and 10 counts of misdemeanor disobeying a domestic
relations court order (§ 273.6, subd. (a), counts 2-11). The jury found true the allegation that Perry
had inflicted great bodily injury on Andrews in commission of the corporal
injury offense. (§ 12022.7, subd. (e).) In a bifurcated proceeding, the trial court
found Perry had suffered a prior robbery conviction. It denied Perry’s Romero motion
name="_ftnref2" title="">[2] and motion for a new trial, and sentenced him
to a term of 15 years in prison, configured as follows. On count 1 the court imposed the midterm of
three years, doubled pursuant to the Three Strikes law to six years. It imposed a consecutive four-year middle
term for the great bodily injury enhancement, and five years for the section
667, subdivision (a) serious felony enhancement. It stayed sentence on counts 2 through 11
pursuant to section 654. It imposed a
restitution fine, a suspended parole restitution fine, a court security fee, a
domestic violence fine, and a criminal conviction assessment. Perry appeals.
DISCUSSION
claim lacks merit.
1.
a.
Perry was represented at trial by the Los Angeles
County Public Defender’s Office. On February 28, 2011, Perry was charged with a
single count of inflicting corporal injury upon a cohabitant (§ 273.5, subd.
(a)), based on the December 28,
2009 incident. The
information also alleged Perry inflicted great bodily injury upon Andrews (§
12022.7, subd. (e)); had suffered a prior “strike†conviction for robbery (§§
211, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and had served a prison
term within the meaning of section 667.5, subdivision (b), for the same
robbery. Perry pleaded not guilty and
denied the special allegations.
On May 4, 2010, the parties appeared
before the court for a pretrial hearing.
The prosecutor informed the court and the defense that Perry had made
approximately 100 telephone calls to Andrews from jail, and the People intended
to use the calls as evidence at trial.
The People also planned to “file violations of protective order charges
against the defendant,†although not on all 100 calls.
On May 25, 2011, the parties appeared for
another pretrial hearing. The prosecutor
had given defense counsel copies of the recorded jailhouse telephone
calls. She notified the court and the
defense that the People would amend the information to add 5 to 10 additional
misdemeanor charges for disobeying a domestic relations court order, based on
the calls.
On May 27, 2011, the People made a plea
offer of 10 years, which the defense rejected.
The prosecutor informed the trial court:
“Counsel asked for an offer, and I made an offer today. . . . It’s ten years state prison. . . . [¶]
And my understanding is he doesn’t want to take that offer. So that offer is no longer available.†That same day the People filed the amended
information alleging the 10 additional misdemeanor counts.
During jury
selection, the prosecutor offered a plea deal with a 13-year sentence. Perry rejected this offer.
Trial began
on June 13, 2011.
On June 17, 2011, the court granted the
prosecutor’s motion to amend the information by adding an allegation that the
prior robbery conviction, which had already been alleged as a “strike,†was also
a serious felony within the meaning of section 667, subdivision (a). The following colloquy transpired:
“[Defense
counsel]: I would be objecting [to the
amendment], even though . . . I know I don’t have grounds to
object. . . . [¶] But I will state this on the record: that when I was advising my client of his
maximum, I did not include that, and I did not tell him about that. And I am being candid about that. [¶] I
have been in discussions with [the prosecutor] regarding potential offers on
this case, and the last offer that we got over lunchtime was the 13-year offer.
“[The
prosecutor]: I renewed the 13-year
offer, given where we are.
“[Defense
counsel]: Correct. [¶]
Mr. Perry is not accepting the 13-year offer, but he would . . . like me
to explain the situation to the court because he is stating that if he knew
about the potential adding of this five years to his maximum sentence, that he
would have taken the ten years before the People added the misdemeanor counts
to the information.
“[The
Court]: Well, . . . then it wouldn’t
matter about the five-year prior. It’s
the misdemeanor counts that were added that apparently has changed his mind,
not the five-year prior.
“[Defense
counsel]: Mr. Perry is stating that the
addition of the five-year prior is changing his mind.
“[The
Court]: That he would have taken the ten
years after the ten counts of the misdemeanors––the restraining order counts––
“[Defense
counsel]: Well, . . . after they added
the ten counts, the ten years was not on the table. The ten years was the offer before they added
the additional ten counts for the protective order. [¶]
But he’s stating that if he knew that there was the possibility of this
five-year being added, then he would have taken that ten-year back before they
even added the misdemeanor counts.
“[The
Court]: Okay. Well, I mean, there are two realities here,
and one is that . . . sometimes there are charging omissions
that do get cleaned up either pretrial or during trial. This is one of them. It happens a lot. [¶]
And so I’m going to allow the five-year prior
amendment . . . .â€
The trial
court discussed the 13-year offer with the People and queried whether they
would accept an 11-year sentence. The
prosecutor responded: “No, not at this
time. [¶] Because the offer was ten at one point. He had
notice that we knew about the jail calls at the time when the ten existed. I just hadn’t added those charges
yet. But there was a potential for
several, considering the phone calls.
And I only ended up adding ten.
[¶] So he knew that there was a possibility that the state prison offer was
going to get much higher, and he still didn’t want to take the ten at the time.†(Italics added.) She added:
“My office did consider the fact that . . . . we’re adding the five at
this point. We did consider that. Which is why I was willing to renew the 13
that I offered in the middle of jury selection, even though we have put[] witnesses
on, particularly the children.â€
b. Perry’s
new trial motion.
After the
jury rendered its verdicts, Perry retained new counsel to prepare a new trial
motion and represent him at sentencing.
Perry contended, inter alia, that his trial counsel had provided
ineffective assistance by failing to advise him of the possibility a 667,
subdivision (a) enhancement could be added. At the outset of the hearing, the trial court
opined: “It’s hard to believe that Mr.
Perry would have taken anything in view of the fact that I think he was pretty
confident his––the victim in this case was going to recant, that that was going
to be successful. [¶] I mean, he never indicated he would take
anything, as far as I can recall the negotiations. There was ultimately an offer made of ten
years.â€
The
prosecutor represented that the 10-year offer had been her idea; there was
never a counteroffer from Perry. “[E]ven
before the preliminary hearing, he never asked for an offer. After the preliminary hearing, never asked for
an offer. And I can understand why after
the preliminary hearing he didn’t ask for an offer. Ms. Andrews failed to appear at the
preliminary hearing. We had to do that
preliminary hearing pursuant to Prop[osition] 115. [¶] So
at that moment, which we later found out through jail calls, he was successful
in getting her not to come to court. And
then listening to the rest of the jail calls, it was pretty clear that he was
feeling pretty confident about her not coming to court again.†The trial court concurred, stating: “That’s the feeling I have. [¶] I
mean, there was never a counteroffer.
‘I’ll take seven or I’ll take six or anything like that.’ You just said, ‘No, I’m not interested in the
ten years.’ [¶] And now the defense is, well, had he known
that there was going to be a five-year prior, he would have taken the ten
years. It’s very hard to believe
that.†The court also opined: “[I]t’s hard for me to believe that [trial
counsel] would not have known that the prior [robbery conviction] would not
only be a strike, but a five-year prior.
That’s pretty elementary.â€
The
prosecutor suggested that Perry’s trial counsel could testify at the hearing on
the new trial motion. Successor defense
counsel argued that trial counsel’s “testimony isn’t particularly relevant to
the issue. She doesn’t necessarily know
what’s in Mr. Perry’s mind.†The
hearing on the motion was continued so that trial counsel could be called as a
witness.
title="">[3]
Perry’s
trial counsel thereafter testified as follows.
Perry had initially sought to have the infliction of corporal injury
charge reduced to a misdemeanor. The
prosecutor made a ten-year offer to Perry after the defense learned about the
jail calls, and before the information was amended to add them. Trial counsel communicated the offer to
Perry, who rejected it. On the first day
of trial Perry counter offered to plead guilty in exchange for a five-year
sentence, but the prosecutor rejected his offer.
After
considering the parties’ arguments, the trial court denied the motion. It reasoned that the conclusion Perry would
have accepted the 10-year deal if he had known about the 667, subdivision (a)
prior was speculative. Perry had
declined to accept the 10-year deal or attempt to continue negotiations when
the misdemeanor counts were added, even though “assuming the worst-case-for-him
scenario, that was an additional ten years.â€
The court opined: “I think that
basically all his cards were on the victim in this case, who testified as he
wanted, to try to recant and make things look good for him, indicating that she
started this, this whole thing was self-defense. And that just didn’t go over very well.â€
c. Perry’s
petition for a writ of habeas corpus.
In support
of his contention that his counsel was ineffective, Perry has filed a petition
for a writ of habeas corpus, which we consider concurrently with his
appeal. Attached to the petition is his
declaration, which states the following.
Prior to trial, defense counsel told Perry the maximum sentence he faced
was 14 years. She told him the
prosecutor had offered a 10-year plea deal, but advised him not to take
it. During jury selection, counsel
advised that the prosecutor had offered a sentence of 13 years. Perry turned the offer down because he “was
not willing to voluntarily agree to a prison sentence that long,†and
“preferred to fight the case at trial.â€
When trial began, he asked counsel to see if the prosecutor would agree
to a five-year sentence. He hoped that,
even if the prosecutor declined the five-year offer, they “could continue to
bargain.†However, counsel came back
with the news that the prosecutor did not think even the 10-year offer was
still available. Perry decided to
proceed to trial. During trial he
learned the prosecutor was adding a section 667, subdivision (a)
enhancement. Defense counsel had never
told him this was a possibility. Perry
avers: “If, at the time of the 10-year
offer, [counsel] had told me that I could also be charged with the above
enhancement, and that my maximum sentence would be 18 years, I would have
instructed her to accept the 10-year offer.
Even if she had advised me to go to trial anyway, I would not have
agreed. I had been worried about taking
the case to trial. If I had known that I
could accept a 10-year sentence, when facing 18 years if I lost at trial, I
would definitely have accepted the 10 years.
I felt okay following [counsel’s] advice not to take a 10-year deal when
the maximum was 14 years, but I would not have risked a sentence of 18 years,
if I could take a 10-year deal.â€
Contrary to the trial court’s opinion, he did not go to trial because he
was counting on Andrews to testify in his favor. He did not know what she was going to say,
and he was worried about losing at trial.
He was “genuinely amenable to negotiating a plea bargain of up to 10
years.â€
2.
A
defendant’s Sixth Amendment right to counsel extends to the plea-bargaining
process. (Lafler v. Cooper (2012) __ U.S. __ [132 S.Ct. 1376, 1384] (
proceeding is a critical stage in the criminal process at which a defendant is
entitled to the effective assistance of counsel guaranteed by the federal and
California Constitutionsâ€]; In re Vargas (2000)
83 Cal.App.4th 1125, 1133.)
The familiar
claims of ineffective assistance arising in the plea bargaining context. (Lafler,
supra, 132 S.Ct. at p. 1384; Frye,
supra, 132 S.Ct. at p. 1405; Strickland
v. Washington (1984) 466 U.S. 668; Alvernaz,
supra, 2 Cal.4th at pp. 936-937.)
Under Strickland, to obtain
relief a defendant must show both that counsel’s performance fell beneath an
objective standard of reasonableness, and that counsel’s deficient performance
“subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to
the defendant.†(
630, 690.) “If a plea bargain has been
offered, a defendant has the right to effective assistance of counsel in
considering whether to accept it. If
that right is denied, prejudice can be shown if loss of the plea opportunity
led to a trial resulting in a conviction on more serious charges or the
imposition of a more severe sentence.†(
establish prejudice under these circumstances, the defendant must show “that
but for the ineffective advice of counsel there is a reasonable probability
that the plea offer would have been presented to the court (
accepted the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence that in fact were
imposed.†(Lafler, at
p. 1385.) A “reasonable
probability†is a probability sufficient to undermine confidence in the
outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694;
Cal.4th 1040, 1050-1051 [reasonable probability means “a reasonable chance and
not merely an abstract possibilityâ€].)
Defense
counsel must inform the defendant of the maximum and minimum sentences that may
be imposed in the event of a conviction.
(Alvernaz, supra, 2 Cal.4th at
p. 937; In re Vargas, supra, 83
Cal.App.4th at p. 1139.) Although the decision
to accept or reject a proffered plea bargain is ultimately the defendant’s, “it
is the attorney, not the client, who is particularly qualified to make an
informed evaluation of a proffered plea bargain. The defendant can be expected to rely on counsel’s
independent evaluation of the charges, applicable law, and evidence, and of the
risks and probable outcome of trial.†(
1, 8 [criminal defense attorneys have a duty to investigate].) “The crucial decision to reject a proffered
plea bargain and proceed to trial should not be made by a defendant encumbered
‘with a grave misconception as to the very nature of the proceeding and
possible consequences.’
[Citation.]†(
demonstrating that counsel’s decisions were not informed. (People
v. Vargas (2001) 91 Cal.App.4th
506, 537-538.) A “defense attorney’s
simple misjudgment as to the strength of the prosecution’s case, the chances of
acquittal, or the sentence a defendant is likely to receive upon conviction
. . . will not, without more, give rise to a claim of ineffective
assistance of counsel.†(
independently review the record. (
at p. 944.)
Section 667,
subdivision (a)(1), provides for a five-year enhancement for a defendant who is
“convicted of a serious felony who previously has been convicted of†serious
felonies specified in section 1192.7, subdivision (c). Robbery is one such serious felony. (§§ 667, subd. (a)(4), 1192.7, subd.
(c)(19).) A section 667, subdivision (a)
enhancement must run consecutively to the term imposed in the present
offense. (People v. Dotson (1997) 16 Cal.4th 547, 553; § 667, subd. (a)(1).) Once pled and proved, imposition of a section
667, subdivision (a) enhancement is mandatory; the allegation may not be
stricken pursuant to section 1385. (§
1385, subd. (b) [“This section does not authorize a judge to strike any prior
conviction of a serious felony for purposes of enhancement of a sentence under
Section 667â€]; People v. Garcia (2008)
167 Cal.App.4th 1550, 1560-1561; People
v. Wilson (2002) 95 Cal.App.4th 198, 201; People v. Turner (1998) 67 Cal.App.4th 1258, 1269.) A prior conviction of a serious felony may be
used both as a strike under the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and as the basis for imposition of a section 667,
subdivision (a) five-year enhancement. (
131, 136; People v. Williams (2004)
34 Cal.4th 397, 400, 404.)
3. Application
here.
Perry contends that his trial counsel was obliged to
alert him that a section 667, subdivision (a) serious felony enhancement could
potentially be alleged based on his prior robbery conviction, and her failure
to do so caused him to reject the 10-year plea deal. He avers that her purportedly deficient
performance constituted ineffective assistance of counsel in violation of the Sixth
Amendment, requiring reversal of his convictions.
Preliminarily,
we address Perry’s assertion that trial counsel “acknowledged that her
performance was deficient,†stated that she “erroneously failed to adviseâ€
Perry of the 667, subdivision (a) enhancement, and “acknowledged, on the record,
that she had no tactical reason for failing to inform†him of it. Perry’s argument overstates the record. As noted ante,
when objecting to amendment of the information, counsel said: “I will state this on the record: that when I was advising my client of his
maximum, I did not include that, and I did not tell him about that. And I am being candid about that.†In our view, this statement was not a “mea
culpa,†as Perry contends. Counsel
simply stated she had not advised Perry of the possibility a section 667,
subdivision (a) enhancement could be alleged, neither more nor less. Her statement was not tantamount to an
acknowledgement of error or deficient performance, nor did it shed any light on
the reason for her action.
Perry urges
that the Sixth Amendment requires counsel to inform a defendant of all charges
and enhancements to which he is exposed, including those the prosecution has
not yet alleged. In his view, it “was
incumbent upon counsel to accurately advise appellant as to all foreseeable
penalties.†Here, addition of the
section 667, subdivision (a) enhancement would have added four years to the
14-year maximum calculated by trial counsel.
robbery prior existed, given that it had already been charged as a “strikeâ€
prior. Counsel should have investigated
and determined that the conviction could also have been alleged as a serious
felony pursuant to section 667, subdivision (a). Because an information may be amended
whenever it is discovered it does not charge all the defendant’s priors
(§ 969a), counsel should have known the enhancement was always “loomingâ€
in the background. As the trial court
observed, frequently charging omissions are “cleaned up†during trial. Therefore, it was unreasonable for trial
counsel to assume “an as-yet-uncharged†section 667, subdivision (a) prior
would not be added later. Once pleaded
and proved, imposition of a section 667, subdivision (a) enhancement is
mandatory, a circumstance that, in Perry’s view, made it particularly crucial
for counsel to inform him of its potential addition.
In support,
Perry cites Riggs v. Fairman (C.D.Cal.
2001) 178 F.Supp.2d 1141, affd. 399 F.3d 1179 (9th Cir. 2005), rehg. en banc
granted, 430 F.3d 1222 (9th Cir. 2005), appeal dismissed, 2006 WL 6903784 (9th
Cir. 2006).) There, the defendant was
prosecuted for shoplifting, and the evidence of his guilt was
overwhelming. (178 F.Supp.2d
for robbery. However, in the prior case,
the defendant had been convicted of four
counts of robbery; each could have been charged as a separate strike. (Id. at
pp. 1143-1144.) Defense counsel assumed,
without conducting sufficient investigation, that only one robbery count
existed and told the defendant his maximum exposure was nine years. (Id. at
pp. 1144-1145.) The prosecutor offered a
plea bargain with a five-year sentence, but defense counsel advised the
defendant to wait for a better offer. He
followed her advice. (
A more favorable offer was never made.
Instead, the prosecutor eventually realized she could charge multiple
strike priors based on the single prior case and amended the information
accordingly. When the defendant learned
he was facing 25-years-to-life, rather than 9 years, he unsuccessfully sought
to recapture the lost plea opportunity.
(Id. at pp. 1145-1146.) He was ultimately sentenced to 25 years to
life. The trial court denied relief,
finding defense counsel had performed adequately based on the information
available to her at the time. (
relief in the California courts were
exhausted, he filed a habeas petition in federal district court. Riggs concluded
the ineffective assistance claim had merit.
(Id. at
pp. 1143, 1147-1148.) Defense counsel
should have discovered the existence of the four robbery counts. (Id. at
pp. 1147-1148.) The consequences of
an additional strike allegation were extremely serious, and the information
would not have been difficult to ascertain.
(Id. at p. 1148.) Riggs assumed,
without explicit analysis, that counsel should have anticipated the possible
amendment by the prosecution and informed the defendant. Perry urges that his trial counsel’s
performance in the instant case was similarly deficient.
The People,
on the other hand, argue that trial counsel did not perform below an objective
standard of reasonableness, because at the time she advised Perry his maximum
sentence was 14 years, this advice was correct;
enhancement had not been charged. The
People argue that it cannot be ineffective assistance to fail to advise a
client of a penalty resulting from a potential charge that the prosecution has
not alleged. Moreover, although
imposition of a section 667, subdivision (a) enhancement is mandatory, in order
to have effect it must be alleged and proven.
(§ 1170.1, subd. (e); People
v. Mancebo (2002) 27 Cal.4th 735, 747 [“in addition to the statutory
requirements that enhancement provisions be pleaded and proven, a defendant has
a cognizable due process right to fair notice of the specific sentence
enhancement allegations that will be invoked to increase punishment for his
crimesâ€]; People
v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) The People argue that whether to allege
a section 667, subdivision (a) serious felony enhancement is
“discretionary with the prosecution.â€
(See People v. Roman (2001)
92 Cal.App.4th 141, 145 [“As a general rule, the selection of criminal
charges is a matter subject to prosecutorial discretionâ€]; In re Varnell (2003) 30 Cal.4th 1132, 1141, fn. 6 [section 969
“does not itself articulate a duty to charge prior convictions but simply
specifies, once a duty to charge a prior conviction is imposed by some other
law, that all such priors be
chargedâ€].) Therefore, the People posit,
“to deem a defense attorney ineffective for failing to
anticipate that a prior conviction, known to the prosecution and already
alleged [as the basis for a different sentencing provision], might be charged
in an additional way would be a novel step.â€
The People question how far such a duty would logically extend: “Should defense counsel also have warned
appellant about the maximum sentence possible with the addition of misdemeanors
. . . before they were charged? Should
counsel have anticipated that the prosecution, having accused appellant of a
single act of causing corporal injury to a cohabitant in December 2009, might
also charge the November 2010 battery as a second count?â€
In our view,
both parties have articulated arguments that have some force. However, we need not determine whether
counsel’s performance was deficient, because we conclude that Perry has failed
to establish prejudice. (See
court need not determine whether counsel’s performance was deficient before
examining the prejudice allegedly suffered by the defendant; “ ‘If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed’ â€],
quoting Strickland v. Washington, supra, 466
U.S. at p. 697.)
“In
determining whether a defendant, with effective assistance, would have accepted
the offer, pertinent factors to be considered include: 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.) A defendant’s uncorroborated, self-serving
statement is insufficient by itself to meet the defendant’s burden of proof. (Ibid.) “[I]n 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.†(
Here, to establish
prejudice, Perry must show there is a reasonable probability he would have
accepted the 10-year plea deal had he known the People could later amend the
information to add the section 667, subdivision (a) enhancement.
As explained ante, at the time
the 10-year deal was offered, addition of the 667, subdivision (a)
enhancement would have changed his maximum exposure from 14 years to 18
years. On the record before us, Perry
has not established prejudice. When the
prosecutor offered the 10-year deal, Perry knew that the People were about to
amend the information to add 10 misdemeanor counts for his repeated violations
of the protective order. Each count
carried a one-year penalty. (§ 273.6,
subd. (a).) Thus, addition of the
misdemeanor counts increased Perry’s potential sentence from 14 years to 24
years. Perry nonetheless turned down the
10-year plea deal, despite the impending 10-year increase in his maximum
sentence. If Perry was unwilling to
accept the 10-year deal when his maximum sentence was about to increase from 14
to 24 years due to counts that were certainly
going to be alleged, it is difficult to fathom that he would have accepted it
upon learning of a 4-year increase based upon an enhancement that
10-year deal when his exposure was increasing to 24 years, it is illogical to
assume he would have embraced it when there was a mere possibility his maximum
exposure might go from 14 to 18 years.
This conclusion
is buttressed by the fact that Perry subsequently turned down the People’s
13-year offer. After the section 667,
subdivision (a) allegation was charged on top of the 10 misdemeanor counts,
Perry’s maximum sentence increased to 28 years.
At that point, the People offered Perry a 13-year term. In turning down the People’s 13-year offer,
he rejected a plea agreement that would have cut his maximum exposure by more
than half, a more favorable ratio than the 10-year term originally offered when
his maximum sentence was 14 years.
Perry raises
several arguments aimed at undercutting this conclusion. He points out that immediately upon learning
the section 667, subdivision (a) enhancement would be charged, he informed the
court, through counsel, that he would have taken the 10-year deal had he known
the enhancement was a possibility. He
posits that “[t]his assertion was credible because of its immediacy.†He also points to his declaration offered in
support of his habeas petition, in which he avers, inter alia, that counsel
advised him not to accept the 10-year deal; if, at the time the 10-year offer
was extant, he had known he could be charged with the section 667, subdivision
(a) enhancement and might face an 18-year sentence, he would have taken the deal,
even if counsel had advised against it; he was worried about going to trial; he
did not know how Andrews would testify; and he preferred to “fight the caseâ€
rather than accept a 13-year term.
As Perry
acknowledges, Alvernaz held that “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. A
contrary holding would lead to an unchecked flow of easily fabricated
claims.†(Alvernaz, supra, 2 Cal.4th at p. 938.) Perry urges that the concerns expressed by
here, and his statements should be credited, because he informed the court he
would have accepted the 10-year deal before
he was convicted. But this
distinction is not persuasive, given that Perry’s statements came at a point in
trial when he may well have concluded a guilty verdict was probable. By the time the prosecutor moved to add the
section 667, subdivision (a) allegation, the jury had already heard the
testimony of Andrews, her two sons, her treating physician, the domestic
violence expert, and a deputy sheriff.
It had also heard the recordings of Perry’s jailhouse calls to
Andrews. As the prosecutor argued in
opposition to the new trial motion, “[B]y that point, he had heard what she
said. He was able to see the reaction of
the jury, and he was able to see her demeanor and how––well, for him––horribly
she came off.†The court agreed: “[T]here’s no question that both she and her
son were not believable witnesses.
[¶] . . . I basically made that finding, and I feel
that. I watched both of them testify. They were not believable.†The reasonable inference is that Perry’s
desire to revive the 10-year offer was motivated not by the section 667,
subdivision (a) enhancement, but instead by his realization trial was not
going as he had hoped. In any event, the
bulk of Perry’s statements in his declaration have not been corroborated by
objective evidence, and are therefore insufficient to overcome the rational
inference arising from his rejection of the 10-year offer as discussed
(Alvernaz,
Perry
contends that the fact he made a five-year counteroffer on the first day of
trial––a fact corroborated by his trial counsel––demonstrated he was genuinely
amenable to negotiating a plea, one of the factors Alvernaz indicated is relevant to the determination of
prejudice. He also urges that “[a]
simplistic 10/18 versus 13/24 comparison does not take proper account of human
behavior and the personal calculus that goes into a decision whether to plead
guilty. If appellant had rejected a
10-year offer when he was facing 24 years,†a comparison of the sentences
“would have force.†However, “it cannot
be presumed that someone who would plead guilty to 10 years while facing 18
would also plead guilty to 13 years while facing 24.†But, as we have explained, Perry
facing 24 years. In our view, the timing
of his failure to take the 10- or 13-year offers strongly undercuts his
arguments.
Finally,
Perry avers that a comparison of the maximum he faced as a result of the
addition of the misdemeanor charges is not comparable to that he faced when the
section 667, subdivision (a) enhancement was added. Unlike the 667, subdivision (a) enhancement,
which was mandatory, it was far from certain that a significant sentence would
be imposed on the misdemeanor counts. It
would have been reasonable for him to believe it was unlikely the court would
actually impose a full one-year sentence on each of the misdemeanor counts,
given that Andrews was a willing participant in the calls. In fact, the court ultimately stayed sentence
on all the misdemeanor counts. But at
the time Perry claims he would have taken the 10-year deal, it was equally
uncertain whether he would actually face the additional four years arising from
the 667, subdivision (a) enhancement, given that that prior had not been, and
might not ever be, alleged. Moreover,
while Perry might have believed the court was unlikely to impose a full 10-year
sentence on each of the 10 misdemeanor charges, he reasonably should have
expected the court might impose some
additional time. The 667, subdivision
(a) enhancement would have increased his maximum by only four years, and it was
certainly a strong possibility the misdemeanor counts would have added at least
this much additional time to his sentence.
In sum, because Perry has failed to establish
prejudice, his ineffective assistance claim lacks merit.
DISPOSITION
The judgment
is affirmed. The petition for a writ of
habeas corpus is denied.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
name="_ftn1" title="">[1] All further undesignated statutory references are to the
Penal Code.
Court (Romero) (1996) 13 Cal.4th 497.
