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CHAN v. LAMARQUE

United States District Court, N.D. California


April 9, 2004.

JUAN JESUS CHAN, Petitioner;
v.
A.A. LAMARQUE, WARDEN, et al., Respondents

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Juan Jesus Chan's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a memorandum of points and authorities in support thereof. Respondent A.A. Lamarque has filed an answer and a memorandum of points and authorities, to which petitioner replied by filing a traverse. Having reviewed the papers filed in support and in opposition to the petition, the Court rules as follows.

BACKGROUND

  Petitioner was charged by an amended information filed January 7, 2000 in the Superior Court of California, in and for the County of Santa Clara, with violations of § 11378 of the Health & Safety Code (Count One), § 11379(a) of the Health & Safety Code (Count Two), § 12021(a)(1)of the Penal Code (Court Three), § 12025(a)(1)of the Penal Code (Court Four), § 12031(a)(1) of the Penal Code (Count Five), § 11550(a) of the Health & Safety Code (Count Six), § 11378 of the Health & Safety Code (Count Seven); §§ 459-460(b) of the Penal Code (Count Eight); and § 148(a)(1) of the Penal Code (Count Nine). (See Resp't's Ex. A at 185-90.) Additionally, plaintiff was charged with using a firearm during the commission of certain of the alleged offenses, with being ineligible for probation as a result of drug-related prior convictions, and with having two prior "strike" convictions. (See id.)

  On January 24, 2000, petitioner pleaded guilty to Counts One, Three, Six, Seven, Eight,*fn1 and Nine, and admitted an arming allegation, an allegation of ineligibility for probation, two prior drug convictions and two prior strike convictions. (See Resp't's Ex. C at 9-12 and Ex. F at 2.) On February 24, 2000, petitioner filed a motion to dismiss the two prior strike allegations pursuant to § 1385 of the Penal Code. (See Resp't's Ex. A at 198-212.) On March 10, 2000, petitioner personally moved to withdraw his guilty plea; the trial court denied petitioner's request. (See Resp't's Ex. C at 16-17.) Also, on March 10, 2000, the trial court granted in part petitioner's motion to dismiss the prior strike allegations, by dismissing one of the prior strike allegations. (See Resp't's Ex. A at 281 and Ex. C at 24.) Thereafter, also on March 10, 2000, the trial court sentenced petitioner to a term of 22 years and 8 months in prison. (See Resp't's Ex. C at 25.)

  On August 23, 2001, the California Court of Appeal denied petitioner's petition for a writ of habeas corpus and for a writ of error coram vobis, on the ground that petitioner had failed to establish a "prima facie case for relief." (See Resp't's Ex. F at 4.)*fn2 The California Court of Appeal did not, before issuing its ruling, request that respondent file a response. On July 31, 2002, the California Supreme Court denied petitioner's petition for a writ of habeas corpus, without opinion. (See Resp't's Ex. J.)

  On March 18, 2003, petitioner filed the instant petition, alleging five claims for relief: (1) Ineffective Assistance of Counsel"; (2) "Ineffective Assistance of Appellate Counsel"; (3) "Judicial Error"; (4) "Petitioner's Conviction Violates the United States and California Constitution's Prohibition against Cruel and Unusual Punishment"; and (5) "Petitioner's Conviction Under the Three Strikes Law is Irrational." (See Pet. for Writ of Habeas Corpus at 6-7.) On March 28, 2003, the Court dismissed the fourth claim, to the extent it was based on an alleged violation of the California Constitution. On July 2, 2003, the Court granted respondent's motion to dismiss the second, fourth, and fifth claims, finding such claims had not been exhausted. Accordingly, petitioner's first and third claims remain before the Court for consideration.

  DISCUSSION

 A. Standard of Review

  A district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d).

 B. Legal Claims

  Petitioner's remaining claims are as follows: (1) a claim for deprivation of due process, predicated on the trial court's alleged failure to inform petitioner of his constitutional rights with respect to the prior conviction allegations, and (2) a claim for ineffective assistance of counsel, predicated on (a) counsel's failure to object when the trial court allegedly did not property inform petitioner of his constitutional rights with respect to the prior conviction allegations and (b) counsel's failure to adequately advise petitioner of the consequences of a guilty plea.

  1. Admission of Prior Conviction Allegations

  Petitioner argues his admission of the prior conviction allegations was not valid because the trial court did not properly inform him that he was waiving his constitutional rights with respect to the prior conviction allegations.

  In his petition for a writ of habeas corpus/coram vobis filed in the California Court of Appeal, petitioner argued as follows:

At the time of the plea, the court below did not advise the Petitioner that he had a right to a trial by jury regarding his prior convictions, and that the People were obligated by law to prove beyond a reasonable doubt the truth of said prior convictions, or that petitioner had a right to confront witnesses and cross examine them regarding his prior convictions. The court did not specifically ask the Petitioner if he waived those Constitutional rights with respect to each prior conviction.
(See Resp't's Ex. M at 2.) The California Court of Appeal rejected petitioner's claim, finding that petitioner had not stated a "prima facie case for relief," (see Resp't's Ex. F at 4), and noting that at the change-of-plea hearing, the trial court "first advised [petitioner] that his total exposure was 114 years to life, and that he had a right to a jury trial, to confront and cross-examine witnesses, to present a defense, and to testify on his own behalf," (see Resp't's Ex. F at 2).

  In his federal petition, petitioner argues that he is entitled to relief on the ground "the trial court failed to instruct Petitioner that he had a right to trial on [the] charges of his alleged prior convictions and that, by pleading guilty, he was also admitting these prior convictions." (See Pet'r's Statement of Facts and Mem. of P. & A. in Support of Pet. at 22.) The Court construes petitioner's contention to be that the California Court of Appeal's decision rejecting that claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d).

  The Due Process Clause requires that a guilty plea be Intelligent and voluntary because a guilty plea constitutes a waiver of the "privilege against compulsory self-incrimination," the "right to trial by jury," and the "right to confront one's accusers." See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). A guilty plea is valid when it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." See North Carolina v. Alford. 400 U.S. 25, 31 (1970). A guilty plea is "involuntary" when it is the product of threats, improper promises, or other forms of wrongful coercion, see Brady v. United States, 397 U.S. 742, 754-755 (1970), and is "unintelligent" when the defendant is without information necessary to assess the "relevant circumstances and likely consequences" of the plea, see id. at 748.

  Here, at the change-of-plea hearing, petitioner admitted the prior convictions, (see Resp't's Ex. C at 11-12), and those prior convictions were subsequently used to enhance his sentence, (see Resp't's Ex. A at 281 and Ex. C at 25-28). The Ninth Circuit has held that "an admission by a defendant of prior felony convictions, where those convictions are to be used to enhance his sentence on the present offense, is the `functional equivalent' of a plea of guilty to a separate charge, and, therefore, it may not be accepted unless the defendant understands the consequences of the admission." See Wright v. Craven. 461 F.2d 1109, 1109 (9th Cir. 1972). Similarly, the California Supreme Court has interpreted Boykin to "require, before a court accepts an accused's admission that he has suffered prior convictions, express and specific admonitions as to the constitutional rights waived by an admission." See In re Yurko, 10 Cal.3d 857, 863 (1974). The United States Supreme Court, however, has not decided whether such a constitutional requirement exists. Assuming, arguendo, a trial court has deprived a defendant of his federal constitutional rights by accepting an admission that a defendant has suffered prior convictions, without first finding that the defendant understands the consequences of that admission and/or without first admonishing the defendant as to the nature of the constitutional rights waived by the admission, a review of the record here establishes that the trial court properly admonished petitioner as to the nature of the rights he was waiving.

  At the change-of-plea hearing, the trial court requested that the deputy district attorney "indicate which charges [the petitioner] will be pleading to," and the deputy district attorney informed the trial court that petitioner would be pleading guilty to Count One, to Count Three, to Count Six, to Count Seven, to Count Eight, as that count was to be amended, to Count Nine, and that petitioner would be admitting the probation ineligibility allegation, two prior drug-related convictions, and two prior strike convictions. (See Resp't's Ex. C at 3-4.) After addressing procedural issues regarding proposed amendments to the information, the trial judge asked petitioner, "Do you understand you're going to be entering pleas to the counts as indicated by the District Attorney here without any conditions whatsoever." (See id. at 5.) Petitioner responded, "Yes, sir." (See id.) The trial court then advised petitioner as to petitioner's "total exposure" and other potential consequences, and also questioned petitioner as to whether he had been made "other promises," whether he was currently under the influence of drugs, alcohol, or any controlled substances, whether any threats or inducements had been made to him to induce him to enter a plea, whether he was entering a plea freely and voluntarily, whether he had adequate time to discuss the matter with his counsel, and whether his counsel had discussed with him the elements of each crime, the nature of the crimes, possible defenses, and various pleas. (See id. at 5-7.)

  Next, the trial court, after stating, "[y]our case is currently pending trial in this department," advised petitioner that he had a right to either a jury trial or a court trial, a right to confront and cross-examine the witnesses against him, a right to present a defense and to have the court's assistance in compelling the attendance of witnesses on his behalf, a right to testify on his own behalf, and a right to invoke his privilege against self-incrimination. (See id at 7-9.) After the trial court advised petitioner of each of the above-referenced rights, the trial court asked petitioner if he understand and gave up that specific right, to which petitioner responded, on each occasion, "Yes, sir." (See id.)

  The trial court then described the charge in Count One and asked petitioner how he wished to plead to Count One, to which petitioner responded, "Guilty." (See id. at 9.) The trial court then proceeded to describe, one at a time, the other counts to which the trial court had been advised petitioner would enter a guilty plea, and as to each charge, petitioner pleaded guilty. (See id at 9-11.) Immediately after petitioner pleaded guilty to Count Nine, the last of the counts to which he had agreed to plead guilty, the trial court proceeded to describe, one at a time, the prior conviction allegations to which the trial court had been advised petitioner would admit, and, as to each of those allegations, petitioner admitted the allegation. (See id. at 11-12.)

  As is evident from the excerpts of the record cited above, the trial court admonished petitioner as to the nature of the rights petitioner held, including the three rights identified in Boykin. specifically, the privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront one's accusers. (See id. at 7-9.) Petitioner did not argue to the California Court of Appeal, and has not argued to this Court, that the trial court erred in any respect as to the advisements provided to petitioner, to the extent such advisements applied to charges other than the prior conviction allegations. Thus, although the precise basis of petitioner's argument is unstated, both in his petition filed in state court and his petition filed in federal court, it appears petitioner is asserting that the trial court erred by not repeating the advisements before the trial court asked petitioner if he admitted the prior conviction allegations. Stated another way, it appears petitioner is arguing that when the trial court admonished him as to the nature of the rights he would waive by pleading guilty, the trial court's admonishment did not apply to the prior conviction allegations. Petitioner, however, has cited no case, either to the California Court of Appeal or this Court, holding that a defendant be twice advised, at the same proceeding, of his federal rights: first, before being asked for his plea on any substantive charges and, second, before being asked whether he admits any prior conviction allegations. Indeed, to the extent courts other than the United States Supreme Court have addressed this issue, those courts have determined such separate advisements are not required. See, e.g., People v. Forrest. 221 Cal.App.3d 675, 677-81 (1990) (holding where advisement and waiver of rights is preceded by recitation of plea bargain terms, including express reference to both current offenses and prior conviction allegations, trial court not required to provide separate advisement of rights as to prior conviction allegations). Significantly, petitioner has not shown that such a rule is clearly established federal law as determined by the United States Supreme Court.

  Consequently, petitioner has failed to show that the California Court of Appeal's decision finding that petitioner had failed to establish a "prima facie case for relief" as to this claim, (see Resp't's Ex. F at 4), was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

  Accordingly, petitioner is not entitled to habeas relief on this claim.

  2. Ineffective Assistance of Counsel

  A petitioner is deprived of his Sixth Amendment right to counsel where he has been provided ineffective assistance of counsel. See Strickland v. Washington. 466 U.S. 668, 685-86 (1984). To establish such a claim, the petitioner must show that his "counsel's representation fell below an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." See id. at 687-88.

  a. Failure to Object

  In his petition for a writ of habeas corpus/coram vobis filed in the California Court of Appeal, petitioner argued that his trial counsel provided ineffective assistance of counsel when counsel did not, in light of the alleged failure of the trial court to adequately inform petitioner of his constitutional rights with respect to the prior conviction allegations, bring a motion to withdraw's petitioner's plea. (See Resp't's Ex. M at 4, 12.) The California Court of Appeal, after summarizing the arguments made by petitioner, held as follows: "We have reviewed the entire record as well as the exhibits submitted with defendant's petition, and find no prima facie case for relief." (See Resp't's Ex. F at 4.)

  In his federal petition, petitioner asserts that his trial counsel was ineffective, on the ground that counsel failed to object at the change-of-plea hearing when the trial court allegedly failed to property inform petitioner of his constitutional rights with respect to the prior conviction allegations.*fn3 As discussed above, the California Court of Appeal's decision that petitioner failed to show error with respect to the manner in which the trial court informed petitioner as to his constitutional rights was not contrary to, and did not involve an unreasonable application of, clearly established federal law. Consequently, and for the reasons discussed above, petitioner has failed to show that the California Court of Appeal's decision that petitioner failed to establish a prima facie claim of ineffective assistance of counsel, based on a theory that counsel should have objected to the trial court's manner of advisement, was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

  Accordingly, petitioner is not entitled to habeas relief on this claim.

  b. Failure to Inform Petitioner of Consequences of Plea

  Petitioner also argued to the California Court of Appeal that his trial counsel was ineffective on the ground counsel failed to adequately inform petitioner of the consequences of a guilty plea. Specifically, petitioner asserted that his "counsel represented to [p]etitioner that due to the fact that his prior convictions were stale, and that because [p]etitioner had a lengthy period in which he did not engage in any criminal activity[,] a period of ten years, coupled with the fact that he had suffered brain damage when he was assaulted by several people, [p]etitioner would be eligible for probation and a diversion program." (See Resp't's Ex. M at 2.) Petitioner further stated that he "changed his plea to guilty based upon the representations of his attorney," (see id.), and that "had he known he was not eligible for a drug program as stated by his trial counsel, and that he would be subject to at least twenty-two years in State prison, he would not have entered a plea of guilty, but would have at the very least gone to trial on his prior convictions," (see id. at 4). As noted, the California Court of Appeal, in denying the claims in petitioner's state petition, found that petitioner did not state a "prima facie case for relief." (See Resp't's Ex. F at 4.)

  In his federal petition, petitioner argues that he is entitled to relief on the ground he "received ineffective assistance of counsel when his trial counsel failed to adequately inform him of the consequences of his guilty plea and led [p]etitioner to believe that he would be sentenced to probation and a drug diversion program." (See Pet'r's Statement of Facts and Mem. of P. & A. in Support of Pet. at 14.) The Court construes petitioner's contention to be that the California Court of Appeal's decision rejecting this claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d).

  Where an ineffective assistance claim "aris[es] out of the plea process," the petitioner must show that his counsel's advice was not "within the range of competence demanded of attorneys in criminal cases," see Hill v. Lockhart. 474 U.S. 52, 57-59 (1985) (internal quotations and citation omitted), and that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial," see id. at 59. Here, the California Court of Appeal, by denying the petition without requiring any response, necessarily found that petitioner's allegations, if true, would be insufficient to support such a showing. See In re Lewallen, 23 Cal.3d 274, 278 n. 2 (1970) (explaining that where state court has issued order to show cause why petition for writ of habeas corpus should not be granted, such issuance "reflects the issuing court's determination that the petition states facts which, if true, entitle the petitioner to relief").

  Petitioner did not claim to the California Court of Appeal that his counsel advised him that the sentence would actually consist of probation and a diversion program; rather, petitioner alleged counsel indicated that petitioner would be "eligible" for such a sentence. Any such advice, if provided, was plainly erroneous, if for no other reason than the plea agreement required petitioner to admit an allegation that he was not eligible for probation.*fn4

  With respect to the requirement of prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland. 466 U.S. at 694. In the context of a guilty plea, the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." See Hill. 474 U.S. at 59. "In other words, in order to satisfy the `prejudice' requirement, the [petitioner] must show that there is reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

  Here, as noted, petitioner asserts that his counsel, prior to the change-of-plea hearing, advised petitioner that was eligible for probation and a drug diversion program, and petitioner contends that he would not have pleaded guilty if he was aware he could be sentenced to a term of at least 22 years.

  At the beginning of the change-of-plea hearing, the deputy district attorney advised the trial court that, as part of the parties' agreement, petitioner had agreed to admit he was subject to a "probation ineligible clause," (see id. at 3:20-21), and, indeed, petitioner admitted that allegation later during the hearing, (see id. at 9:25-10:4). Consequently, if petitioner's counsel gave him erroneous advice before the change-of-plea hearing about petitioner's eligibility for probation, petitioner expressly was made aware of the contrary at the change-of-plea hearing. Moreover, the trial court explicitly advised petitioner, twice, that if he entered a guilty plea, petitioner would be subject to a term of 114 years to life imprisonment, and petitioner, on both occasions, stated that he understood he could be sentenced to such a term:

The Court: Do you understand you're going to be entering pleas to the counts as indicated by the District Attorney here without any conditions whatsoever?
The Defendant: Yes, sir.
The Court: You understand that?
The Defendant: Yes, sir.
The Court: And the total exposure, Mr. Sloan,*fn5 has been calculated [to be] 109 years to life.
Mr. Sloan: I believe it would be 114 years to life.
The Court: One hundred fourteen years to life. Do you understand that, Mr. Chan?
The Defendant: Yes, sir.
The Court: Have any other promises been made to you with regard to the disposition of these cases?
The Defendant: No, sir.
(See id.at 5:8-23.)

 

The Court: Do you understand under the proposed disposition you could be sentenced to 114 years to life in prison?
The Defendant: Yes, sir.
(See id. at 6:13-16.)

  In short, the record demonstrates petitioner was aware, before he changed his plea to guilty that, as a result of pleading guilty, he would be ineligible for probation and that he could be sentenced to a term well over 22 years. Under such circumstances, the California Court of Appeal's decision that petitioner failed to demonstrate that his counsel's advice affected the outcome of the plea proceeding was not objectively unreasonable. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (holding where counsel advised defendant he would receive sentence of "not more than twelve years imprisonment if he pleaded guilty" and district court sentenced defendant to term of "fifteen years imprisonment, with a subsequent twenty-year term of probation," defendant "suffered no prejudice from his attorney's prediction because, prior to accepting his guilty plea, the court explained that the discretion as to what the sentence would be remained entirely with the court"), cert. denied. 499 U.S. 940 (1991): see also United States v. Gordon. 4 F.3d 1567, 1571 (10th Cir. 1993) (holding defendant suffered no prejudice from counsel's inaccurate prediction of sentence, where district court, prior to accepting guilty plea, explained to defendant that court's final calculation of sentence may differ from calculation by counsel; stating "[g]iven the fact that [d]efendant pleaded guilty even after being so informed by the court, his mere allegation that, but for original counsel's failure to inform him about the use of relevant conduct in sentencing, he would have insisted on going to trial, is insufficient to establish prejudice"), cert. denied. 510 U.S. 1184 (1994).

  In his federal petition, petitioner, in an apparent attempt to explain why he believed he would be sentenced to probation if he pleaded guilty, in spite of his having admitted the "probation ineligible clause," (see Resp't's Ex. C at 3:20-21), and the trial court's having correctly informed petitioner as to the possible sentence, asserts that his counsel's filing of a motion to dismiss the "strike" priors caused him to believe he would receive a "program should he go to sentencing." (See Pet'r.'s Statement of Facts and Mem. of P. & A. in Support of Pet. at 13:24-25.) There is, however, no connection between the motion to dismiss the strike priors and petitioner's eligibility for probation because the prior conviction upon which the probation ineligibility allegation was predicated was not the subject of the motion to dismiss. (See Resp't's Ex. B at 200-05.) In other words, even if the motion to dismiss the strike priors had been granted in full, which would have resulted in petitioner's being sentenced without any prior "strikes," petitioner would still have been ineligible for probation. In any event, petitioner did not argue to the California Court of Appeal that his erroneous belief was caused by the filing of the motion to dismiss, which was filed after petitioner pleaded guilty, nor did he suggest, let alone offer any evidence, that his counsel provided inadequate advice as to the possible outcome of the motion to dismiss.

  Consequently, petitioner has not shown that the Court of Appeal's decision finding that petitioner failed to establish a prima facie case of ineffective assistance based on advice concerning a possible sentence was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

  Accordingly, petitioner is not entitled to habeas relief on this claim.

  CONCLUSION

  For the foregoing reasons, the petition for a writ of habeas corpus is hereby DENIED.

  The Clerk shall close the file.

  IT IS SO ORDERED.

  JUDGMENT IN A CIVIL CASE

 

[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
[x] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT is ORDERED AND ADJUDGED
the petition for a writ of habeas corpus is hereby DENIED.


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