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Kennard Gerald Johnson, Aka Kennard v. Domingo Uribe

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 12, 2010

KENNARD GERALD JOHNSON, AKA KENNARD GERLARD JOHNSON,
PETITIONER,
v.
DOMINGO URIBE, JR., WARDEN, RESPONDENT.

The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

#:482

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I BACKGROUND

On May 26, 2006, in San Bernardino County Superior Court case no. FWV035414, the People filed a first amended information charging petitioner Kennard Gerald Johnson, aka Kennard Gerlard Johnson, with one count of unlawful driving or taking of a vehicle in violation of California Vehicle Code ("Veh. C.") § 10851 (count 1), one count of grand theft auto in violation of California Penal Code ("P.C.") § 487(d)(1) (count 2), one count of receiving stolen property in violation of P.C. § 496d(a) (count 3), and one count of forgery in violation of P.C. § 476 (count 4); as to all counts, petitioner was also charged with having suffered a prior serious or violent felony within the meaning of the California Three Strikes law, P.C. §§ 1170.12(a)-(d) and 667(b)-(i) (L.A. no. BA209791), and having suffered five prior terms for which he had not remained free from custody for five years after release within the meaning of P.C. § 667.5 (L.A. nos. BA209791, KA055864, and VA062637; S.B. no. FVA013569; and Riv. no. HEF003778); and, as to counts 1 through 3, petitioner was further charged with having suffered a previous conviction for violating P.C. § 487d, within the meaning of P.C. § 666.5. Clerk's Transcript ("CT") 48-51. On September 8, 2006, petitioner pleaded guilty to all counts, admitted all special allegations, and agreed to be immediately sentenced to 14 years and 4 months pursuant to a Vargas waiver,*fn1 and the trial court temporarily stayed petitioner's sentence, released petitioner on his own recognizance ("OR"), and agreed to later reduce petitioner's sentence to 6 years if the Vargas conditions were met. CT 59-65; Reporter's Transcript ("RT") 6:12-17:25. On March 21, 2008, the trial court found petitioner was in violation of the Vargas conditions and lifted the stay on the previously imposed sentence of 14 years and 4 months. CT 117-21; RT 26:13-31:25.

The petitioner appealed his convictions and sentence to the California Court of Appeal, CT 122-23, which, on May 18, 2009, affirmed the judgment, and also denied a habeas corpus petition which had been consolidated with the appeal. Lodgment nos. 3-12. The petitioner sought a rehearing from the California Court of Appeal, which denied the petition, modified certain language in its written decision, and did not change the judgment. Lodgment nos. 13-14. On July 1, 2009, petitioner, proceeding through counsel, filed two petitions for review in the California Supreme Court, which the California Supreme Court denied on August 12 and September 9, 2009. Lodgment nos. 15-16, 18; People v. Johnson, California Supreme Court case no. S174301.

II The California Court of Appeal, in affirming petitioner's judgment, made the following findings of fact underlying petitioner's offenses:*fn2

On June 28, 2005, [petitioner] entered an automobile dealership, submitted a credit application, and signed a sales contract to purchase a used vehicle [2003 Ford Focus, California license #5BIW671 (CT 27)]. To facilitate the sales contract, [petitioner] wrote a fraudulent check in the amount of $4,000. He also included false information in the credit application.

III Lodgment no. 12 at 2 (footnote omitted).

On February 2, 2010, petitioner, proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his convictions and sentence, and on March 26, 2010, respondent filed an answer to the petition. On June 7, 2010, petitioner filed his reply, and on August 5, 2010, respondent filed a supplemental memorandum of points and authorities. After reviewing respondent's supplemental memorandum, this Court appointed counsel to represent petitioner, pursuant to 18 U.S.C. § 3006A, and on October 13, 2010, held an evidentiary hearing. Following the evidentiary hearing, petitioner and respondent filed post-hearing briefs.

The pending petition raises the following claims: Ground One -- Trial counsel was ineffective in violation of petitioner's Sixth and Fourteenth Amendment rights "by failing to object to imposition of a sentence clearly higher than authorized by law and to convictions unauthorized by law"; and Ground Two -- "Trial counsel provided ineffective assistance [in] violation of the Sixth and Fourteenth Amendments by failing to advise [petitioner] that the plea agreement required a plea to illegal convictions and a sentence clearly higher than authorized by law." Petition at 5. // // //

IV DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "circumscribes a federal habeas court's review of a state court decision." Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003); Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534, 156 L. Ed. 2d 471 (2003). As amended by AEDPA, 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall presume a state court's determination of factual issues is correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000); Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850, 152 L. Ed. 2d 914 (2002). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case." Williams, 529 U.S. at 413, 120 S. Ct. at 1523; Andrade, 538 U.S. at 75, 123 S. Ct. at 1174.

"Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'" Andrade, 538 U.S. at 71, 123 S. Ct. at 1172 (quoting Williams, 529 U.S. at 412, 120 S. Ct. at 1523). "Although the statutory formulation restricts federal law to Supreme Court precedent, . . . 'Ninth Circuit precedent may be persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application of Supreme Court law, and may also help . . . determine what law is clearly established.'" Sims v. Rowland, 414 F.3d 1148, 1151 (9th Cir.), cert. denied, 546 U.S. 1066 (2005); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).

The California Supreme Court reached the merits of petitioner's claims when it denied his petitions for review without comment or citation to authority. Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir. 2005), amended by, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied, 510 U.S. 887 (1993). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594, 115 L. Ed. 2d 706 (1991); Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc), cert. denied, 552 U.S. 1316 (2008). Thus, in addressing petitioner's claims, this Court will consider the reasoned opinion of the California Court of Appeal, which denied these claims on their merits. Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010); Collins v. Runnels, 603 F.3d 1127, 1130 (9th Cir.), cert. denied, __ S. Ct. __, 2010 WL 2632367 (2010).

V The AEDPA modified the circumstances under which a Court may grant an evidentiary hearing on a state prisoner's habeas corpus petition, providing:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, [a district] court shall not hold an evidentiary hearing on the claim unless the applicant shows that - [¶] (A) the claim relies on - [¶] (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or [¶] (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and [¶] (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added).

The respondent contends an evidentiary hearing is not proper since petitioner has not satisfied Section 2254(e)(2). Answer at 16:19-17:22. However, "[b]y the terms of its opening clause the statute applies only to [petitioners] who have 'failed to develop the factual basis of a claim in State court proceedings.' If the [petitioner] has failed to develop the facts, an evidentiary hearing cannot be granted unless the [petitioner's] case meets the other conditions of § 2254(e)(2)." Williams v. Taylor, 529 U.S. 420, 430, 120 S. Ct. 1479, 1487, 146 L. Ed. 2d 435 (2000); Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir. 2003). "[A] failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the [petitioner] or the [petitioner's] counsel." Williams, 529 U.S. at 432, 120 S. Ct. at 1488; Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010). "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Williams, 529 U.S. at 437, 120 S. Ct. at 1490; Bragg v. Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001), amended by, 253 F.3d 1150 (9th Cir. 2001).

Here, when petitioner sought habeas corpus relief from the California Court of Appeal, he submitted supporting evidence and requested an evidentiary hearing, although none was held. See Lodgment no. 4. Under these circumstances, petitioner has not failed to develop the facts regarding his ineffective assistance of counsel claims, see Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) ("A petitioner who has previously sought and been denied an evidentiary hearing has not failed to develop the factual basis of his claim and therefore satisfies § 2254(e)(2)."); Perez v. Rosario, 459 F.3d 943, 953-54 (9th Cir. 2006) (Petitioner "requested evidentiary hearings in the state court; the district court was thus not barred from conducting a hearing."), and an evidentiary hearing is appropriate to further develop the facts regarding petitioner's ineffective assistance of counsel claims. See Stanley, 598 F.3d at 624 ("[A]n evidentiary hearing is justified where, as here, 'the material facts were not adequately developed at the state-court hearing.' Therefore, [petitioner] is entitled to an evidentiary hearing on his ineffective assistance claim if his allegations, if proved, would entitle him to federal habeas relief." (citations omitted)).

This Court makes the following findings of fact and conclusions of law based on the record and the evidence adduced at the evidentiary hearing:

1. Prior to the People filing charges against petitioner in San Bernardino County Superior Court case no. FWV035414,*fn3 the case challenged in the pending habeas petition, petitioner had suffered at least the following convictions:

a. On August 14, 2000, in San Bernardino County Superior Court case no. FVA013569, petitioner pleaded guilty to, and was convicted of, one count of forgery in violation of P.C. § 475(c), and he was placed on probation. Lodgment nos. 19, 25. Subsequently, petitioner's probation was revoked, and on December 2, 2002, he was sentenced to two years in state prison to run concurrent to any sentence being served in any other case. Ibid.

b. On April 19, 2001, in Los Angeles County Superior Court case no. BA209791, pursuant to a negotiated plea bargain, petitioner pleaded nolo contendere to, and was convicted of, one count of having sexual intercourse with a minor in violation of P.C. § 261.5(c) and one count of making terrorist threats in violation of P.C. § 422, and petitioner was placed on probation. Lodgment no. 21. Subsequently, on June 19, 2002, petitioner's probation was terminated following his conviction and sentencing in case no. VA062637. Id.

c. On April 30, 2001, in Los Angeles County Superior Court case no. VA062637, petitioner pleaded guilty to, and was convicted of, one count of grand theft auto in violation of P.C. § 487d, and he was placed on probation. Lodgment nos. 19, 24. Subsequently, petitioner's probation was revoked, and on June 19, 2002, he was sentenced to three years in state prison. Ibid.

d. On October 15, 2001, in Riverside County Superior Court case no. HEF003778, petitioner pleaded guilty to, and was convicted of, one count of grand theft in violation of P.C. § 487(a), and petitioner was placed on probation. Lodgment nos. 19-20. Subsequently, petitioner was determined to have violated probation, and on December 16, 2004, he was sentenced to one year and four months in state prison. Ibid.

e. On June 7, 2002, in Los Angeles County Superior Court case no. KA055864, petitioner pleaded guilty to, and was convicted of, one count of grand theft auto in violation of P.C. § 487d, one count of second degree burglary in violation of P.C. § 459, one count of making a false financial statement in violation of P.C. § 532a(2), and four counts of forgery in violation of P.C. §§ 470(b), 470(d), 475(b) or 475(c) (counts 3, 5-7). Lodgment no. 19, 23. On July 9, 2002, petitioner was sentenced to five years and four months in state prison, to run concurrent with his sentence in case no. VA062637. Ibid.

2. Only two of petitioner's prior convictions/sentences set forth above in Finding 1(a)-(e) come within the meaning of P.C. § 667.5(b) for enhancement purposes: the convictions/sentences in L.A. nos. VA062637 and KA055864 and S.B. no. FVA013569, in which petitioner received concurrent prison terms; and the conviction/sentence in Riv. no. HEF003778, in which petitioner was sentenced to one year and four months in state prison. Lodgment no. 19.

3. On August 16, 2005, the People filed a felony complaint charging petitioner with one count of unlawful taking of a vehicle (Veh. C. § 10851), one count of grand theft auto (P.C. § 487(d)(1)), and one count of receiving stolen property (P.C. § 496d(a)), all of which allegedly occurred on July 27, 2005; and, as to all counts, petitioner was alleged to have suffered: a prior strike within the meaning of the Three Strikes law, P.C. §§ 1170.12(a)-(d) and 667(b)-(i) (L.A. no. BA209791); two prior prison terms within the meaning of P.C. § 667.5(b) (L.A. nos. KA055864 and VA062637); and a prior P.C. § 487d conviction within the meaning of P.C. § 666.5. CT 1-4.

4. On February 2, 2006, the Superior Court appointed the public defender's office to represent petitioner, and petitioner was arraigned and pleaded not guilty to the charges and allegations in the felony complaint. CT 6-7. Petitioner was released on conditional OR status. CT 6.

5. On March 21, 2006, the People offered petitioner a plea bargain of a four year sentence if petitioner "plead[ed] to [Veh. C. § 10851 and] admit[ted] a prison prior" with petitioner "get[ting] half time, and the D.A. . . . dismiss[ing] the strike." Reporter's Amended Transcript ("RAT") 1:24-27. At the time, petitioner was represented by Deputy Public Defender Mike Milligan, who "explained [the offer] to [petitioner] and . . . [petitioner] reject[ed] the offer." RAT 1:28-2:3.

6. The preliminary hearing took place on April 10, 2006, with Deputy Public Defender David Durdines representing petitioner. CT 12-14, 21-45. This was the first time Mr. Durdines had met petitioner, and they spoke for a couple of minutes in the courtroom. Evidentiary Hearing Transcript ("EHT") 23:9-24:1, 47:5-7, 49:3-7, 99:23-100:10.

7. During his representation of petitioner, Mr. Durdines spoke with petitioner only on the dates they appeared together in court, and only for brief periods of time, and he never saw petitioner outside of the courtroom. EHT 25:25-26:2, 98:24-100:14. Mr. Durdines did not interview petitioner about the events underlying the charges against him or ask petitioner's version of the underlying facts, nor did Mr. Durdines ask petitioner about the enhancements or priors alleged against him. See, e.g., EHT 40:14-41:19, 59:8-16, 100:8-14, 107:1-109:6.

8. On April 12, 2006, the People filed an information against petitioner, setting forth the same charges, prior strike, two prior prison terms and prior grand theft conviction alleged in the felony complaint. CT 15-19. Deputy District Attorney Margaret Bevan signed the information. CT 19.

9. On April 19, 2006, petitioner pleaded not guilty to the charges in the information, and the court scheduled a jury trial for petitioner on May 30, 2006. CT 20. Petitioner was represented at this hearing by Deputy Public Defender Susan Starbuck, who appeared for Mr. Durdines. Id.

10. On May 26, 2006, the People filed a first amended information against petitioner. CT 48-51. Deputy District Attorney James Secord signed the first amended information. CT 51. The first amended information was different from the initial information in that it: added count 4, charging petitioner with forgery in violation of P.C. § 476, allegedly occurring on June 28, 2005; and added three additional prior prison terms within the meaning of P.C. § 667.5(b) (L.A. no. BA209791, S.B. no. FVA013569, and Riv. no. HEF003778). CT 48-51.

11. On May 26, 2006, petitioner, who was represented by Mr. Durdines, was arraigned and pleaded not guilty to all charges and enhancements alleged in the first amended information. CT 52. A brief (2-3 minutes) conversation took place between petitioner and Mr. Durdines; however, Mr. Durdines did not discuss the new first amended information with petitioner, and did not interview petitioner about the events underlying the charges against him, including the new forgery count, or ask petitioner about the enhancements alleged in the first amended information. EHT 97:20-21, 100:8-14, 107:1-109:6.

12. Prior to May 30, 2006, the People made "an outstanding offer of five years and a strike" to petitioner; however, on May 30, 2006, petitioner rejected the offer. CT 53; RT 3:11-25. Mr. Durdines only discussed this offer with petitioner for 2 or 3 minutes and did not advise petitioner about whether he should accept or reject the offer. EHT 97:4-19.

13. On May 30, 2006, the Superior Court set the next hearing date for June 16, 2006, and continued the jury trial to June 19, 2006. CT 53.

14. The petitioner failed to appear at the hearing on June 16, 2006, as the Superior Court had previously ordered, and the court revoked petitioner's OR release, issued a bench warrant for petitioner's arrest and set bail for petitioner at $250,000.00. CT 54.

15. On July 25, 2006, petitioner appeared electronically from the Los Angeles County jail, and the Superior Court recalled the bench warrant. CT 55. The court set new dates for a pretrial hearing on August 18, 2006, a readiness hearing on September 1, 2006, and the jury trial on September 5, 2006. Id.

16. On August 10, 2006, petitioner wrote a letter to the Superior Court asking to be released on OR or to have bail set and explaining that he had failed to appear on June 16, 2006, because he was in custody on a "parole hold" that was ultimately dismissed. Clerk's Augmented Transcript 1-2.

17. On August 18, 2006, petitioner, who was in custody, was not produced for hearing. CT 56.

18. On August 22, 2006, the Superior Court held a pretrial hearing at which petitioner and Mr. Durdines were present; however, the court did not rule on petitioner's requests for OR or bail. CT

57. The hearing was continued to August 25, 2006, and September 23, 2006, was set as the "last date for [petitioner's] trial." Id.

19. On August 25, 2006, petitioner, who was represented by Mr. Durdines, waived time for trial to October 23, 2006, and the Superior Court set the next hearing for September 8, 2006. CT 58.

20. On September 8, 2006, petitioner, who was present in court with Mr. Durdines, CT 63, told Mr. Durdines he wanted to be released on OR or bail so he could be present for the birth of his child, which was expected to happen within the month. EHT 100:15-20. Mr. Durdines approached Ms. Bevan with petitioner's request, EHT 54:4-6, and Ms. Bevan advised Mr. Durdines that, since petitioner had previously failed to appear at a hearing, she would only agree to petitioner's OR release if he would enter into a Vargas waiver in which he would plead guilty to all charges and alleged enhancements in exchange for the maximum sentence on those offenses and enhancements, which was fourteen years and four months, and she would agree to a lower sentence of six years and would not file any new charges against petitioner for failing to appear on June 16, 2006, if petitioner complied with the conditions of his release and returned to court for resentencing. CT 60-62; EHT 28:17-30:20, 54:7-17, 79:10-80:6.

21. When Ms. Bevan offered the Vargas waiver, she did not have petitioner's complete file, had never seen any documents establishing petitioner's prior convictions, and had not discussed petitioner with Mr. Secord, the trial deputy, who was not present. EHT 75:20-76:25.

22. At the time Mr. Durdines relayed the People's offer of a Vargas waiver to petitioner, he had not interviewed petitioner about the facts of petitioner's case or the charges and enhancements alleged against him, had not discussed petitioner's case or priors with anyone in the district attorney's office, had not done any investigation into petitioner's priors, and had not done any legal research on possible sentencing options on the alleged charges and enhancements. EHT 32:10-36:18, 40:11-41:19, 54:18-55:9, 59:12-16, 66:10-22.

23. At the time Mr. Durdines relayed the People's offer of a Vargas waiver to petitioner, he did not ask petitioner whether he needed time to consider the offer, did not advise petitioner he could ask the court for a short continuance if petitioner needed time to consider the offer, and did not offer to put the case over "for second call" so petitioner could consider the offer. EHT 68:12-69:6, 110:15-111:11.

24. Mr. Durdines did not advise petitioner that the People's offer of fourteen years and four months was an unlawful sentence that was greater than the sentence authorized by California law and greater than the sentence petitioner could receive if he went to trial and was found guilty of all charges and the alleged enhancements were proven. EHT 40:11-41:19, 104:12-14. Rather, he advised petitioner that a Vargas waiver is "too risky" and generally not a good idea because petitioner might be unable to comply with the conditions of his release, and he then would have to serve the fourteen years four months sentence, which was a high sentence. EHT 35:14-36:16, 56:1-8, 115:22-116:2.

25. Mr. Durdines provided ineffective assistance of counsel to petitioner when he did not provide petitioner competent advice regarding the People's offer of a Vargas waiver, and petitioner was prejudiced by Mr. Durdine's ineffective assistance in that he entered into a plea that included him serving a sentence greater than the sentence authorized by California law for the charges and enhancements alleged against him in the first amended information.

26. Mr. Durdines did not advise the Superior Court that he objected to petitioner's acceptance of the People's offer of a Vargas waiver; rather, he joined in the plea. EHT 57:21-58:8; RT 14:5-7, 15:4-8.

27. The petitioner understood that the offer of the Vargas waiver required him to serve the maximum sentence on all of the charges and enhancements alleged against him in the first amended information if he did not comply with the conditions of his release, and he understood the maximum on those charges and enhancements was a sentence of fourteen years and four months. EHT 103:2-5, 105:6-11. The petitioner would have accepted the People's offer of a Vargas waiver if the maximum sentence he was required to serve if he did not comply with the conditions of his release was no more than fourteen years and four months, and if the sentence was lawful. EHT 105:12-23.

28. After the Superior Court accepted petitioner's plea and Vargas waiver, it released petitioner on OR, sentenced petitioner to fourteen years and four months, and stayed the imposition of petitioner's sentence pending his "resentencing" on September 22, 2006. CT 59-65; RT 6:117-17:22. Mr. Durdines rendered ineffective assistance of counsel by failing to object to petitioner's sentence, and petitioner was prejudiced by Mr. Durdine's ineffectiveness.

29. Petitioner's son was born on September 18, 2006. EHT 94:18-25.

30. On September 22, 2006, petitioner appeared with Mr. Durdines for resentencing, and the court continued the resentencing to September 29, 2006. CT 66.

31. On September 29, 2006, petitioner failed to appear for resentencing as the Superior Court had previously ordered, and the Court revoked petitioner's OR release and bail and issued a bench warrant. CT 67.

32. On October 3, 2007, the bench warrant was recalled, and petitioner, who was in county jail, appeared electronically. CT 68.

33. On January 28, 2008, the Superior Court relieved the public defender's office from representing petitioner and appointed conflicts attorney David Goldstein to represent petitioner, who wanted to withdraw his guilty plea on the grounds of ineffective assistance of counsel. CT 71; RAT 3:16-5:20.

34. Mr. Goldstein filed a motion to withdraw petitioner's plea based on ineffective assistance of counsel, CT 74-79; RT 23-25, and on March 21, 2008, the court denied petitioner's motion to withdraw his plea. CT 117-19; RT 26:13-29:23. The grounds for ineffective assistance of counsel raised in petitioner's motion to withdraw his plea were not based on the sentence petitioner received.

35. On March 21, 2008, the Superior Court found petitioner was in violation of the Vargas conditions and lifted the stay on the previously imposed sentence of fourteen years and four months. CT 117-21; RT 26:13-31:25.

VI "The Sixth Amendment guarantees criminal defendants the effective assistance of counsel.

" Yarborough v. Gentry, 540 U.S. 1, 4, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003) (per curiam); see also Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473, 1480-81, 176 L. Ed. 2d 284 (2010) ("Before deciding whether to plead guilty, a defendant is entitled to 'the effective assistance of competent counsel.'" (citations omitted)). To succeed on an ineffective assistance of trial counsel claim, a habeas petitioner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360 (2005); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The petitioner bears the burden of establishing both components. Williams, 529 U.S. at 390-91, 120 S. Ct. at 1511-12; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. "Deficient performance is performance which is objectively unreasonable under prevailing professional norms." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). Prejudice "focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993); Williams, 529 U.S. at 393 n.17, 120 S. Ct. at 1513 n.17.

"[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel." Padilla, 130 S. Ct. at 1486 (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985)); Iowa v. Tovar, 541 U.S. 77, 81, 124 S. Ct. 1379, 1383, 158 L. Ed. 2d 209 (2004); see also Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) ("'[A] defendant has the right to make a reasonably informed decision whether to accept a plea offer.'" (citation omitted)). With minor modifications, "the two-part Strickland . . . test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill, 474 U.S. at 58, 106 S. Ct. at 370; Wright v. Van Patten, 552 U.S. 120, 124, 128 S. Ct. 745, 746, 169 L. Ed. 2d 583 (2008) (per curiam). The only difference is that the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59, 106 S. Ct. at 370; Turner, 281 F.3d at 879.

Petitioner claims he received ineffective assistance of counsel when his trial counsel "fail[ed] to object to imposition of a sentence clearly higher than authorized by law and to convictions unauthorized by law" (Ground One) and "fail[ed] to advise [petitioner] that the plea agreement required a plea to illegal convictions and a sentence clearly higher than authorized by law" (Ground Two). Petition at 5.

The California Court of Appeal made the following detailed findings regarding the facts and circumstances underlying petitioner's guilty plea and sentence:

In a first amended information, [petitioner] was charged with the following offenses: count 1, unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); count 2, grand theft of a vehicle (Pen. Code, § 487, subd. (d)(1)); count 3, receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)); and count 4, forgery (Pen. Code, § 476). It was further alleged [petitioner] had previously been convicted of one serious or violent felony (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served five prior prison terms (Pen. Code, § 667.5, subd. (b)). [¶] Pursuant to a written plea agreement, [petitioner] pled guilty to all four counts alleged in the first amended information and admitted all of the prior conviction allegations. The parties stipulated to the police report and the preliminary hearing transcript as the factual basis for the guilty plea. Defense counsel made no objection and indicated he concurred with his client's guilty plea and admissions. [¶] Immediately following the guilty plea, the trial court sentenced [petitioner] to a total of 14 years four months in state prison. To reach the total sentence of 14 years four months, the court imposed the upper term of four years on count 1 and doubled it to eight years as a result of the prior strike. The court imposed the upper term of four years each on counts 2 and 3 but stayed both pursuant to Penal Code section 654. On count 4, the court imposed eight months (i.e., one-third the middle term of two years), doubled to one year four months as a result of the prior strike, and ordered it to be served consecutively to the term imposed on count 1. The court then added one consecutive year for each of the five prior prison terms. As provided in the plea agreement, the court stayed the sentence and [petitioner] was released on his own recognizance so he could be present for the birth of his child. [Petitioner's] release was subject to various terms and conditions as set forth on the record and in the written plea agreement, as well as [petitioner's] appearance in court on September 22, 2006. The court also indicated it would be willing to continue the matter if [petitioner] appeared on September 22, 2006, with a doctor's statement indicating the child would be born on some later date. If he returned thereafter as ordered by the court, the plea agreement provided for the court to withdraw the previously imposed but stayed sentence of 14 years four months and to resentence [petitioner] to a total of six years in state prison. If he failed to appear or violated the terms of his release, the trial court stated it would lift the stay on the previously imposed sentence of 14 years four months. The parties refer to this arrangement as a "Vargas waiver" based on the approval of a similar plea agreement in People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas). [¶] On September 22, 2006, [petitioner] appeared in court as ordered. The court continued the matter to September 29, 2006, and [petitioner] was once again released on his own recognizance subject to the same terms and conditions as his previous release. On September 29, 2006, [petitioner] failed to appear and the court issued a bench warrant for his arrest. [Petitioner] next appeared in the case while in custody more than one year later on October 3, 2007. While in custody awaiting final sentencing, [petitioner] filed a motion to withdraw his plea, but the motion was denied. [¶] On March 21, 2008, the court found [petitioner] violated the terms of his Vargas waiver. As a result, the court lifted the stay and imposed the total sentence of 14 years four months in state prison. There was no objection to the manner in which the sentence was calculated at that time, or at the original sentencing.

Lodgment no. 12 at 2-4 (emphasis added).

The Court of Appeal then determined defense counsel was not ineffective in advising petitioner regarding the plea bargain, stating:

Ordinarily, a defendant who pleads guilty in exchange for a specific sentence and receives the benefit of the bargain is estopped from later complaining about the sentence he received as a result of the plea agreement. In People v. Hester (2000) 22 Cal.4th 290 (Hester), the defendant pled guilty to several charges, including burglary and felony assault, in exchange for a four-year sentence. Defendant's counsel concurred in the plea agreement and made no objection at the time of sentencing. (Id. at p. 293.) On appeal, the defendant claimed the trial court erroneously failed to stay the sentence on the felony assault count under Penal Code section 654, because the burglary and the assault were committed pursuant to a single intent and objective. (Id. at p. 294.) [¶] Our Supreme Court in Hester found defendant was estopped from complaining about a sentence to which he agreed. "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. While failure to object is not an implicit waiver of . . . rights, acceptance of the plea bargain here was." (Hester, supra, 22 Cal.4th at p. 295.)

* * * [¶] "[A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." However, courts determining whether counsel's performance was deficient must "'exercise deferential scrutiny'" and "should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." "Because we accord great deference to trial counsel's tactical decisions, counsel's failure to object rarely provides a basis for finding incompetence of counsel." In addition, ineffective assistance of counsel claims must be rejected on direct appeal if the record does not affirmatively show why counsel failed to object and the circumstances suggest counsel could have had a valid tactical reason for not objecting. [¶] In our view, the record reveals an obvious tactical purpose for counsel's failure to object to the 14-year four-month sentence provided in the plea agreement at the time [petitioner] was sentenced. The record shows [petitioner] rejected an offer on March 21, 2006, to plead guilty to count 1 in exchange for a four-year prison term plus the admission of one prison prior and the dismissal of a strike. Given [petitioner's] exposure, this was an attractive offer. On May 30, 2006, [petitioner] rejected a similar offer of "five years and a strike." [Petitioner] rejected this offer even though he was advised on the record his maximum exposure was about 13 years. [¶] After declining two attractive offers, at least one of which was less than his actual sentencing exposure, [petitioner] entered into the plea agreement which included the risky Vargas waiver and a total sentence of 14 years four months if he failed to abide by the terms of his release. The record is silent as to whether [petitioner's] attorney failed to advise him that the 14-year four-month sentence provided in the plea agreement, which was obviously calculated to make certain he complied with the terms of release under a Vargas waiver, arguably exceeded the sentence the trial court could legally impose if he went to trial on all of the allegations against him. These circumstances show that [petitioner] desired a release under a Vargas waiver so he could be present for the birth of his child and this was the primary motive for declining the prior offers and for entering into the challenged plea agreement. [¶] In addition to [petitioner's] temporary release under a Vargas waiver, the plea agreement included another substantial benefit to [petitioner] if he abided by the terms of his release - a six-year term that was significantly less than the term he was likely to receive if he was convicted on all viable charges and allegations at trial. Because of this potential for a favorable sentence, and [petitioner's] strong desire for a plea agreement allowing his release under a Vargas waiver, it would not have been in [petitioner's] best interest for his attorney to object to the terms of the plea bargain and risk the trial court's rejection of the agreement. Some defense attorneys would not have concurred in the plea agreement and would have objected to the 14-year four-month sentence. However, based on the record alone and under the particular circumstances presented, we cannot conclude counsel's failure to object fell below prevailing professional norms.[FN3] Because we cannot conclude on the record before us that counsel's performance was deficient, we must reject [petitioner's] ineffective assistance of counsel claim.

[FN3] At oral argument, the People raised another possible reason for counsel's failure to object. According to the People, the total sentence of 14 years four months was not outside the realm of possibility if there had been further development of the factual record. This is because [Veh. C.] section 10851, subdivision (a), proscribes two separate and distinct crimes. First, it prohibits the act of taking a vehicle without the owner's consent with the intent to steal it. Second, it prohibits the act of driving a vehicle without the consent of the owner with or without the intent to steal. This second "non-theft" component of [Veh. C.] section 10851, subdivision (a), is said to proscribe two types of conduct - either post-theft driving of the vehicle once the theft is complete or "joyriding," which is driving the vehicle with the intent only to temporarily deprive the owner of possession. At the preliminary hearing, an investigator testified that [petitioner] took the vehicle from the dealership on June 28, 2005, and "the vehicle was found when [petitioner] went to his parole office on July 27th . . . 2005." At this time, the keys to the vehicle were found in [petitioner's] possession. Thus, it is at least arguable the People could have amended the information to add another separate and divisible count of [Veh. C.] section 10851, subdivision (a), for post-theft driving of the vehicle. However, because the People raised the argument for the first time at oral argument, we have not considered the issue in reaching our conclusion.

Lodgment no. 12 at 5-9 (some citations omitted; emphasis added);

Lodgment no. 14 (same).

To establish deficient performance, petitioner must show his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Williams, 529 U.S. at 391, 120 S. Ct. at 1511. In reviewing trial counsel's performance, the Court will "strongly presume[] [counsel] rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Gentry, 540 U.S. at 8, 124 S. Ct. at 5. Only if counsel's acts and omissions, examined within the context of all the surrounding circumstances, were outside the "wide range" of professionally competent assistance, will petitioner meet this initial burden. Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 2588, 91 L. Ed. 2d 305 (1986); Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066; Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535. "Counsel's investigation must, at a minimum, permit informed decisions about how best to represent the client." Cox v. Ayers, 613 F.3d 883, 893 (9th Cir. 2010); Frierson v. Woodford, 463 F.3d 982, 989 (9th Cir. 2006), cert. denied, 551 U.S. 1134 (2007); see also Daniels v. Woodford, 428 F.3d 1181, 1203 (9th Cir. 2005) ("'Pretrial investigation and preparation are the keys to effective representation of counsel.'"

(citation omitted)), cert. denied, 550 U.S. 968 (2007). Thus, in the guilty plea context, "it is the responsibility of defense counsel to inform a defendant of the advantages and disadvantages of a plea agreement and the attendant statutory and constitutional rights that a guilty plea would forgo." Libretti v. United States, 516 U.S. 29, 50-51, 116 S. Ct. 356, 368, 133 L. Ed. 2d 271 (1995); Manley v. Belleque, 366 Fed. Appx. 734, 735 (9th Cir.), cert. denied, __ S. Ct. __, 2010 WL 3834326 (2010). In so doing, "a reasonably competent counsel will attempt to learn all of the facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis before allowing his client to plead guilty." Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003); Watson v. Anglin, 560 F.3d 687, 690-91 (7th Cir. 2009); see also United States v. Russell, 221 F.3d 615, 620 (4th Cir. 2000) ("[A]n attorney has a duty to adequately examine the law and facts relevant to the representation of his client. . . ."). "When representing a criminal client, the obligation to conduct an adequate investigation will often include verifying the status of the client's criminal record, and the failure to do so may support a finding of ineffective assistance of counsel." Russell, 221 F.3d at 621.

A. The P.C. § 667.5(b) Prior Convictions:

It is undisputed that, at the time of his guilty plea, petitioner had previously served only two prior separate prison terms within the meaning of P.C. § 667.5(b), rather than the five alleged in the first amended information, and that in pleading guilty, petitioner received at least a three year greater sentence than the maximum possible sentence he could have received given the charges against him in the first amended information. See, e.g., Respondent's Supplemental Memorandum of Points and Authorities at 4:7-5:17 (conceding petitioner's "maximum total exposure for all counts and enhancements was 11 years and four months"). In the pending habeas petition, petitioner claims that before he pleaded guilty pursuant to a Vargas waiver, his defense counsel should have: investigated the charges against him; discovered that, among other things, the first amended information incorrectly alleged he had five P.C. § 667.5(b) priors; and informed him that the proffered plea agreement required him to plead guilty to an illegal sentence.*fn4 The Court agrees.

The Court finds Mr. Durdines did not render competent assistance to petitioner. First, Mr. Durdines did not perform an adequate investigation into the facts of petitioner's case or the sentence enhancements alleged against petitioner before petitioner pleaded guilty. Indeed, prior to petitioner's guilty plea, Mr. Durdines had not interviewed petitioner about the charges and enhancements alleged against him, had not discussed the facts of petitioner's case or the alleged priors with anyone in the district attorney's office, had done absolutely no investigation into petitioner's prior convictions, and had not done any legal research on possible sentencing options regarding the charges and enhancements. Rather, Mr. Durdines blindly and blithely accepted the accuracy of the sentence enhancements alleged against petitioner in the first amended information. Absent such preliminary investigation, Mr. Durdines did not, and could not, competently advise petitioner about the merits of the Vargas offer, and this "failure to conduct a reasonable investigation constitutes deficient performance." Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002); Myers v. Mendoza-Powers, 621 F. Supp. 2d 902, 915-16 (C.D. Cal. 2008); see also Moore, 348 F.3d at 242 ("[T]he deficient performance prong is met where the inaccurate advice 'resulted from the attorney's failure to undertake a good-faith analysis of all of the relevant facts and applicable legal principles.'" (quoting Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000)); Russell, 221 F.3d at 621 (defense counsel provided deficient performance when he failed to perform the minimal necessary investigation to confirm the status of defendant's prior convictions and instead relied on government's erroneous representation regarding the convictions); United States v. Barnes, 83 F.3d 934, 940 (7th Cir.) ("A defendant can prove that his attorney's performance was deficient if he shows that his attorney did not make a good-faith effort to discover the facts relevant to his sentencing, to analyze those facts in terms of the applicable legal principles and to discuss that analysis with him." (citing McMann v. Richardson, 397 U.S. 759, 769-71, 90 S. Ct. 1441, 1448-49, 25 L. Ed. 2d 763 (1970)), cert. denied, 519 U.S. 857 (1996)).

Second, Mr. Durdines's investigatory failures were compounded by his evident misunderstanding of the law surrounding P.C. § 667.5(b) enhancements,*fn5 in particular that Section 667.5(b) only applied to "prior separate prison term[s] served for any felony." P.C. § 667.5(b) (2005). Here, even minimal research would have disclosed that petitioner did not serve five prior prison terms within the meaning of P.C. § 667.5(b), as charged in the first amended information, since petitioner received probation in LA no. BA209791 and concurrent sentences in SB no. FVA013569 and LA nos. VA062637 and KA055864.*fn6 See, e.g., People v. Riel, 22 Cal. 4th 1153, 1203, 96 Cal. Rptr. 2d 1, 39 (2000) ("Defendant had two felony convictions, but he served only one prison term. Accordingly, we must strike the redundant second prison term finding."), cert. denied, 531 U.S. 1087 (2001); People v. Jones, 63 Cal. App. 4th 744, 747, 74 Cal. Rptr. 2d 328 (1998) ("Courts have consistently recognized that [P.C. § 667.5(b)] means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases."); People v. Carr, 204 Cal. App. 3d 774, 779, 251 Cal. Rptr. 458 (1988) ("Section 667.5(g) provides that a defendant serves a single term in state prison notwithstanding that the term consists of several separate sentences attributable to different convictions."). Since Mr. Durdines failed to discuss with petitioner the enhancements alleged in the first amended information and the manner in which P.C. § 667.5(b) worked, petitioner was in no position to alert Mr. Durdines to the errors in the first amended information.*fn7 Therefore, in this regard as well, Mr. Durdines's performance was deficient. Williams, 529 U.S. at 395, 120 S. Ct. at 1514; Morrison, 477 U.S. at 385, 106 S. Ct. at 2588; see also Lankford v. Arave, 468 F.3d 578, 584 (9th Cir. 2006) (Counsel's "'errors . . . were not a strategic decision. . . . They were the result of a misunderstanding of the law.'" (quoting United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1986))), cert. denied, 552 U.S. 943 (2007); Dando v. Yukins, 461 F.3d 791, 799 (6th Cir. 2006) ("The evidence in this case suggests that the attorney's decision was not an exercise in professional judgment because it reflected a misunderstanding of the law. . . ."); Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003) ("[A] tactical or strategic decision is unreasonable if it is based on a failure to understand the law.").

Given the obvious error in calculating petitioner's maximum possible sentence, Mr. Durdines was also deficient in failing to object at petitioner's sentencing. See United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003) (defense counsel's failure to bring obvious sentencing error to court's attention constitutes deficient performance); United States v. Horey, 333 F.3d 1185, 1187-88 (10th Cir. 2003) (counsel's failure to object to improper sentencing enhancement was deficient performance).

Due to Mr. Durdines's failure to investigate the facts and the law regarding petitioner's alleged priors, petitioner pleaded guilty to a sentence that was at least three years greater than the maximum possible lawful sentence he could have received. Thus, "the petitioner has established Strickland prejudice." Glover v. United States, 531 U.S. 198, 200, 121 S. Ct. 696, 698, 148 L. Ed. 2d 604 (2001); see also Daniels, 428 F.3d at 1206 ("A defendant suffers prejudice when counsel's ineffective performance leads to an increased sentence for the defendant."); United States v. Granados, 168 F.3d 343, 346 (8th Cir. 1999) (per curiam) ("There can be little doubt that the petitioner's substantial rights are affected if his prison sentence is longer than it should have been."); Lewis v. Lane, 832 F.2d 1446, 1457 (7th Cir. 1987) ("That petitioner was prejudiced by [defense counsel's] stipulation to the existence of two prior felony convictions which in fact did not exist can hardly be disputed. A defendant may not be sentenced 'on the basis of assumptions concerning his criminal record which [are] materially untrue.'" (quoting Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255, 92 L. Ed. 1690 (1948)), cert. denied, 488 U.S. 829 (1988).

For all these reasons, the Court finds that the California Court of Appeal's determination that petitioner did not receive ineffective assistance of counsel was an unreasonable application of clearly established federal law.

B. P.C. § 654:

Although there is no dispute that petitioner pleaded to a sentence greater than allowed by California law, the parties dispute what the maximum sentence is that petitioner could have received under California law. Petitioner claims that Mr. Durdines was also ineffective in failing to advise him that there was no substantial evidence to support consecutive punishment or sentencing on the unlawful driving or taking of a vehicle count (count 1) and the forgery count (count 4), which should have been stayed pursuant to P.C. § 654.*fn8 Thus, petitioner contends the maximum lawful sentence he could have received on the charges and enhancements alleged in the first amended information is 10 years. Petitioner's Post-Hearing Brief at 8:1-11:6. However, the respondent disagrees, arguing that separate sentences are and were proper on counts 1 and 4. Respondent's Post-Evidentiary Hearing Brief at 2:11-5:25.

P.C. § 654 precludes multiple punishments for a single act or indivisible course of conduct. People v. Coleman, 48 Cal. 3d 112, 162, 255 Cal. Rptr. 813, 843 (1989), cert. denied, 494 U.S. 1038 (1990); People v. Perez, 23 Cal. 3d 545, 551, 153 Cal. Rptr. 40, 43 (1979). "'The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.'" People v. Tarriz, 180 Cal. App. 4th 612, 626, 103 Cal. Rptr. 3d 278 (2009) (quoting People v. Hutchins, 90 Cal. App. 4th 1308, 1312, 109 Cal. Rptr. 2d 643 (2001)). "'The proscription against double punishment in [P.C.] section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.'" Coleman, 48 Cal. 3d at 162, 255 Cal. Rptr. at 843 (citation omitted). //

In the first amended information, petitioner was charged in count 1 with unlawful driving or taking of a vehicle on July 27, 2005, and in count 4 with forgery occurring on June 28, 2005. CT 49-50. Count 1 alleged petitioner unlawfully drove or took the 2003 Ford Focus on July 27, 2005, the day his parole officer found the stolen vehicle in petitioner's possession. CT 32, 38. Count 4 alleged petitioner wrote a forged $4,000.00 check on June 28, 2005, to purchase the 2003 Ford Focus from Penske Automotive Group, Inc. CT 26-33, 38. The check was written on a Volt Information Services payroll account, and petitioner did not have permission to use this account. CT 31-32, 39.

Although petitioner arguably could not be sentenced both for the forgery of the check used to obtain the 2003 Ford Focus and the unlawful taking of the Focus, see, e.g., People v. Caruth, 237 Cal. App. 2d 401, 405, 47 Cal. Rptr. 29 (1965) ("It was error for the trial court to impose sentences on both the worthless check offense alleged in Count 4 of the information and the grand theft offense alleged in Count 5. The defendant issued this check to obtain the automobile he was found guilty of stealing. Under the evidence in this case, issuing the check and taking the automobile, . . . 'were parts of a continuous course of conduct and were motivated by on objective, theft.'" (citations omitted)); People v. Rosenberg, 212 Cal. App. 2d 773, 777, 28 Cal. Rptr. 214 (1963) ("[T]he use of the check and the taking of possession of the television set were parts of a continuous course of conduct and were motivated by one objective, the theft of the set, the use of the check being incident to and a means of perpetrating the theft. Consequently, the defendant can be punished for one of the offenses but not for both." (citation omitted)); People v. Martin, 208 Cal. App. 2d 867, 877, 25 Cal. Rptr. 610 (1962) ("[W]e believe that while two distinct offenses were committed in each transaction and therefore the defendants were properly convicted of each offense the provisions of section 654 preclude the court from imposing separate sentences for each offense since as we view the evidence the two offenses in each instance (issuing the checks with insufficient funds and grand theft) were incident to but one objective, the immediate obtaining of funds with which to cover previously issued bad checks."), California law does allow petitioner to be sentenced on both the unlawful driving of the Focus on July 27, 2005, as charged in count 1, and the forgery on June 28, 2005, as charged in count 4. That is, under California law, Veh. C. § 10851(a) "separately prohibits the acts of driving a vehicle and taking a vehicle. Thus, a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of section 10851(a)."*fn9 People v. Garza, 35 Cal. 4th 866, 880, 28 Cal. Rptr. 3d 335, 345 (2005) (citations omitted); see also People v. Jaramillo, 16 Cal. 3d 752, 759 n.6, 129 Cal. Rptr. 306, 310 n.6 (1976) (Vehicle Code § 10851 "prohibits driving as separate and distinct from the act of taking."). In other words, "once a person . . . has stolen a car. . . , further driving of the vehicle is a separate violation of [Veh. C.] section 10851(a) that is properly regarded as a nontheft offense. . . ." Garza, 35 Cal. 4th at 881, 28 Cal. Rptr. 3d at 345.

Here, the first amended information alleged conduct in counts 1 and 4 on different dates, and P.C. § 654 would not bar sentencing petitioner on both the unlawful driving of a vehicle count and the forgery count. Cf. Garza, 35 Cal. 4th at 882, 28 Cal. Rptr. 3d at 346 ("The theft of the vehicle six days earlier was long since complete, and the driving therefore constituted a separate, distinct, and complete violation of section 10851(a)."). Thus, any error Mr. Durdines made in not raising this claim during petitioner's sentencing did not prejudice petitioner. See Robbins, 528 U.S. at 286 n.14, 120 S. Ct. at 764 n.14 ("'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069)).

VII "[H]abeas corpus is, at its core, an equitable remedy."

Schlup v. Delo, 513 U.S. 298, 319, 115 S. Ct. 851, 863, 130 L. Ed. 2d 808 (1995); Harvest v. Castro, 531 F.3d 737, 744 (9th Cir. 2008). This Court, thus, "has broad discretion in conditioning a judgment granting habeas relief" and may "dispose of habeas corpus matters 'as law and justice require.'" Hilton v. Braunskill, 481 U.S. 770, 775, 107 S. Ct. 2113, 2118, 95 L. Ed. 2d 724 (1987) (quoting 28 U.S.C. § 2243); Chioino v. Kernan, 581 F.3d 1182, 1184 (9th Cir. 2009). Moreover, "[h]abeas remedies should put the defendant back in the position he would have been in if the Sixth Amendment violation never occurred." Chioino, 581 F.3d at 1184 (citations and internal quotation marks omitted); Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003), cert. denied, 543 U.S. 1038 (2004). Generally, this means that a defendant who has entered into a plea bargain contemplating an illegal sentence may withdraw his guilty plea. Smith v. United States, 321 F.2d 954, 955-56 (9th Cir. 1963); United States v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002). But this is not always so. Rather, [w]ithdrawal of the plea may be unnecessary when the agreed-on sentence exceeds the sentence authorized by law and the government accepts a sentence reduced to the legal term, when the sentence can be reconciled with the plea agreement or otherwise corrected to give the defendant the benefit of the bargain, or when the defendant is willing to accept a legal sentence in place of the promised one.

Greatwalker, 285 F.3d at 730; see also Pickens v. Howes, 549 F.3d 377, 382 (6th Cir. 2008) ("[I]t is unnecessary to permit a person to withdraw an illegal plea or require the state to retry a case when the defendant's sentence has been modified to make the sentence legal and to give the defendant every benefit of his bargain.").

Here, petitioner entered into a Vargas waiver so he could be released on his own recognizance in time to attend the birth of his child, and he was required to serve the maximum sentence on the charges and enhancements against him only if he did not comply with the conditions of his release. Due to his defense counsel's ineffectiveness, petitioner erroneously understood the maximum sentence against him was fourteen years and four months in state prison, and he pleaded guilty with this understanding. It is clear that petitioner would have accepted the People's offer of the Vargas waiver had his defense counsel provided effective assistance and made sure the statutory maximum was properly calculated at less than the term petitioner accepted as part of his guilty plea. Under these circumstances, and since respondent is willing to accept a sentence reduced to the lawful maximum term, Respondent's Post-Evidentiary Hearing Supplemental Brief at 7:6-7, the appropriate remedy here is to remand the matter to the Superior Court so the Superior Court can resentence petitioner to a term no greater than the lawful maximum. Pickens, 549 F.3d at 382; Greatwalker, 285 F.3d at 730; see also Chioino, 581 F.3d at 1186 ("Once it found a [Sixth Amendment] violation, the district court should have remanded to the state trial court for resentencing instead of ordering the state trial court to reduce the sentence in accordance with the district court's order."); Nunes, 350 F.3d at 1057 ("[I]f the state puts [petitioner] in the same position he would have been in had he received effective counsel, that would cure the constitutional error.").

RECOMMENDATION

IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) adopting the Report and Recommendation as the findings of fact and conclusions of law herein; (3) finding petitioner's defense counsel in San Bernardino County Superior Court case no. FWV035414 rendered ineffective assistance of counsel when he failed to advise petitioner he was pleading to an unlawful sentence, and petitioner was prejudiced by his attorney's deficient performance; and (4) entering Judgment granting petitioner's habeas corpus petition, and requiring respondent to release petitioner within 120 days of the entry of Judgment unless the San Bernardino County Superior Court, within that time period, resentences petitioner to a lawful sentence, as discussed herein.


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