IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
February 28, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL WESLEY BRISENO, DEFENDANT AND APPELLANT.
Trial Court: Santa Clara County Superior Court Trial Judge: Hon. John T. Ball Super. Ct. No. C9886818)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
(Santa Clara County
This case returns to us on appeal after circulating through both state and federal courts beginning in 1999. In his current appeal, defendant Michael Briseno contends that he should be permitted to withdraw his guilty plea to 32 counts of child molestation because the plea was involuntary. We are without jurisdiction to entertain his appeal due to the absence of a certificate of probable cause.
Defendant has also filed a petition for a writ of habeas corpus, which this court ordered to be considered with the appeal. In that petition he asserts ineffective assistance of counsel based on trial counsel's failure to (1) explain why he should expect a long prison sentence, (2) advise him of the mandatory minimum term he would have to serve and (3) withdraw from representing him in the motion to withdraw the plea. We have decided that matter by separate order.
In June 1999 defendant was charged by information with a total of 33 counts, including lewd conduct with a child under 14, in violation of Penal Code section 288, subdivision (a); attempted lewd conduct; and oral copulation with a minor, in violation of Penal Code section 288a, subdivision (b)(2).*fn1 These acts were variously alleged to have occurred between 1995 and March 31, 1998, with one exception occurring in 1991. Altogether the charged crimes were alleged to have been committed against five boys who were between 10 and 13 years old. A sixth alleged victim, the subject of count 33, was defendant's own five-year-old son, but that count was dismissed at sentencing.
The original charges against defendant were filed in May 1998. In September of that year, defendant's retained attorney, Thomas Salciccia, expressed his view that defendant was incompetent, within the meaning of section 1368, and the court suspended the proceedings for an evaluation of defendant's mental condition. The following month the evaluating psychologist submitted a report describing defendant's pathology, notably pedophilia, but finding defendant "able to understand the nature of the proceedings [and] to very adequately assist counsel in the conduct of a defense in a rational manner." The trial court found insufficient evidence of incompetency.
Defense counsel again raised the question of defendant's mental competency on September 28, 1999, asserting "an impairment of reasoning and an emotional disturbance and a mental retardation accompanied by an erratic and irrational behavior." Salciccia supported his view by pointing to letters defendant had written, not only to him but also to the prosecutor.*fn2 The court, however, found insufficient facts to justify suspending the proceedings for another competency examination. The court then declared a recess to allow defendant and his attorney an opportunity to discuss the matter.
The proceedings resumed with a hearing at which defendant changed his plea. The court first explained in detail the role and function of a jury and the factual and legal considerations involved in the judge's sentencing decision. The court followed that lengthy discourse with an invitation to defendant to ask any questions he had. Defendant responded that he did not have many questions; he only wanted to point out that he had turned himself in to avoid, not cause, more problems. The "last thing I want to do," he added, "is have a jury trial and I don't want to have the jury trial, all right, and I'm not going to have a jury." The court emphasized that it had no intention of urging defendant to do something against his will, and it encouraged defendant to listen to the advice of his attorney. The court did add that "people are never, I repeat, never punished for going to trial. No one is ever going to say you're going to be punished if you exercise your constitutional right to go to trial. However, defendants frequently are, and the system always recognizes that people can be, in effect, rewarded for not going to trial." Defendant said he understood. The court continued, "Remorse, contrition, all of those factors are clearly recognized in the law and to be frank with you, by District Attorneys, when they see an effort to avoid the trauma of trial, and there obviously are no commitments from the District Attorney, she is not in a position to do so." The court finally stated that it wanted to be "absolutely certain" that defendant's change of plea was to be entered "freely, voluntarily, and not under any kind of threat, pressure of promise or force of any kind whatsoever" from the prosecutor, defense counsel, or the court. The court again invited questions from defendant, who had none.
The prosecutor then moved to dismiss count 33. The court indicated that it would do so at the time of sentencing, and it proceeded to hear defendant's change of plea. The court first explained the maximum penalty defendant could receive as a consequence of his plea: a determinate sentence of 10 years and eight months, followed by a consecutive sentence of 360 years to life; restitution to the victims; payment of a restitution fine and various fees and costs; submission of blood and saliva specimens; avoidance of contact with all victims; and registration as a sex offender. Each offense, the court noted, was a strike offense, and the court explained that consequence as well as a mandatory sentence enhancement for any future serious or violent felony. Defendant then assured the court that he was changing his plea "freely and voluntarily," that he had had enough time to discuss with his attorney the elements of the crimes and defenses, and that he was satisfied with the representation he had received from his attorney.
The court proceeded to obtain defendant's waiver of his constitutional jury trial rights. Defendant then pleaded guilty to 25 counts of lewd conduct, five counts of attempted lewd conduct, and two counts of oral copulation with a minor. He also admitted, as to the lewd conduct counts, that they had involved more than one victim and therefore qualified for treatment under section 667.61.
Not long after his change of plea, defendant reconsidered that decision. In early January 2000 he wrote to the judge who had conducted the proceedings. Defendant explained that he had pleaded guilty only because he wanted the "unfair hearsay charge" that his five-year-old son was the victim in count 33 to be "dropped." The San Jose Mercury News, however, had published a story mentioning this charge, and now he wanted to "pull [his] plea" and find an attorney willing to "fight for [him] with all his heart." At a hearing in February he again asserted his wish to "pull" his plea. Initially he wanted to discharge Salciccia as his attorney and represent himself; but by the end of the hearing he was willing to have Salciccia make the requisite motion.
Salciccia continued to declare his belief that defendant was incompetent. Although he felt that the evidence was "deadly against" defendant, Salciccia accepted a continuance to look into the possible merit of a motion to withdraw the plea. In March 2000 defense counsel filed the motion, asserting the incompetence of defendant and violation of the plea bargain through the release of information about count 33 to the press. The prosecutor opposed the motion, noting that no promises had been made that the alleged victims' ages, which were part of the public record, would be kept confidential. She further noted that the question of defendant's competency had already been resolved in the September 1999 proceedings.
The trial court denied the motion at a hearing on March 31, 2000. The court stated that it had carefully reviewed the matter. It found "most telling" the "quite extensive" voir dire it had conducted at the plea hearing, which was "quite binding." In the court's view, the Mercury News publication was "totally insufficient as a matter of law" to support withdrawal of the plea; and the asserted incompetency of defendant was "totally refuted by the evidence." Defendant appeared to be seeking a trial "solely for the purpose of testing some form of jury nullification."
The matter was then set for sentencing on May 12, 2000. Meanwhile, defendant continued writing letters to the judge, complaining about his housing classification in custody and the "exaggeration and illegal slander" in the news. Defendant vaguely represented that he had filed civil lawsuits, which he hoped would help the judge decide if he deserved "one chance at probation."
At the sentencing hearing appellant asked that he be permitted to discharge his attorney and have one appointed for him, because he did not believe there was "any ethical reason" for him to go to prison. The court denied that request, finding that it would "cause a disruption of the orderly process of justice." Moreover, there was no purpose in having a public defender seeking additional continuances because the court had already denied the motion to withdraw the plea based on the law and the "overwhelming" evidence in the case. Defendant alternatively asked for surgical castration; that request, too, was denied. The court then permitted a witness to testify in support of defendant's character, but found further testimony of that nature irrelevant, as probation was not an option and the penal consequences were dictated by the law. The court did allow defendant to make a lengthy statement, in which he claimed to have been made mentally ill by devoting his life to children. He had turned himself in, confessed, and pleaded guilty "to protect people, not to hurt people." Defendant insisted that the investigating officer had induced the victims to lie. He suggested that he "wouldn't mind spending more time in county jail," but because of the newspaper publicity, his life would be in danger if he went to prison.
The court emphasized to defendant that it did not pass any moral judgment on him or judge his credibility, nor did it "quarrel with" defendant's beliefs, "feeling of salvation," or "feelings of injustice." It explained to defendant that most of the counts against him involved grave misconduct which carried a statutory penalty of 15 years to life. The court pointed out that there were five separate victims between 10 and 14 years old, whom defendant had molested over a substantial period of time. Although defendant's self-surrender and lack of prior criminal conduct were mitigating factors, they were, in the court's view, far outweighed by the aggravating factors--particularly his violation of the young victims' trust and the planned nature of the repeated offenses. The court also noted defendant's "attempt to blame other individuals," even the victims, and his claim that no one was harmed by his conduct, all of which shocked the conscience of the court.
Defendant was then sentenced to an indeterminate prison term of 210 years to life, consisting of 15 years to life for each of 25 counts, along with a consecutive determinate term of nine years, four months for the remaining seven counts, pursuant to section 1170.1.
Defendant filed a timely notice of appeal, asserting ineffective assistance of counsel based on Salciccia's inadequate representation of him in moving to withdraw his plea. Defendant contended that (1) the court had not advised him of any mandatory minimum term, (2) it misled him by mentioning parole and strike consequences and by giving him the impression that favorable evidence offered at sentencing might reduce his prison time, and (3) he was allowed insufficient time to consult with his lawyer before changing his plea. Compounding this error, defendant argued, was the ineffective representation by his lawyer, who failed to tell him that his plea would result in his spending the rest of his life in prison and allowed him to plead guilty even while believing him to be incompetent. Had he received independent counsel, defendant argued, he probably would have been allowed to withdraw his plea.
Defendant did not, however, seek a certificate of probable cause. In September 2002 this court dismissed the appeal, because defendant had raised only issues going to the validity of the plea. We further denied defendant's accompanying petition for a writ of habeas corpus. In the course of the appellate proceedings defendant twice moved for relief from default and leave to apply for a certificate of probable cause. We denied those motions as well. The California Supreme Court denied review of the second motion for relief from default, the habeas petition, and the appeal. The remittitur from this court issued on December 2, 2002.
Defendant sought further consideration in the federal district court, asserting ineffective assistance of counsel based on his attorney's (1) failure to obtain a certificate of probable cause; (2) failure to advise him of the consequences of his guilty plea; and (3) encouragement to plead guilty despite knowledge of defendant's incompetence. Defendant further asserted a due process violation in the court's failure to advise him of the consequences of his plea, thus making his plea involuntary.
The district court rejected all of these contentions and denied the petition. The Ninth Circuit Court of Appeals, however, reversed "in part" in a 2-1 decision. (Briseno v. Woodford (9th Cir. 2010) 413 Fed. Appx. 2, 2010 U.S. App. Lexis 26434.) The court considered only Salciccia's failure to obtain a certificate of probable cause.*fn3 It found no prejudice with respect to defendant's competency, because there was no reasonable possibility of success in arguing this issue on appeal. With respect to the failure to advise defendant of the mandatory minimum sentence, however, the majority did find prejudice, because there was "a reasonable chance he would be successful on appeal." (413 Fed. Appx. at p. *4, 2010 U.S. App. Lexis 26434 at p. **6.) Accordingly, on remand the district court granted the petition and ordered the Department of Corrections to release defendant unless the state permitted him to appeal the judgment on the ground that he was denied effective assistance of counsel "when his trial counsel failed to request a certificate of probable cause on the issue of the trial judge's failure to inform him of the mandatory minimum sentences for each charge." This court thereafter granted a motion to recall the remittitur, thereby reinstating defendant's appeal.
Defendant now contends that his due process rights were violated because his plea was involuntary. He cites the following reasons for such a conclusion: (1) The court failed to advise him of a "direct consequence" of his plea--that is, the statutory minimum sentence he would receive (i.e., 15 years to life); (2) He was " 'so gripped by hopes of leniency' " that he was unable, even with counsel's assistance, to weigh rationally the advantages of going to trial against pleading guilty; and (3) The court misled him by giving him an "illusory promise" of a "meaningful sentencing hearing" at which it would consider evidence of his background and attitude and the opinion of those who knew him, and by implying that defendant would be "rewarded" at sentencing for not going to trial. But for these errors, defendant argues, there can be "no rational conclusion" that he would have pleaded guilty knowing that he would receive 25 life terms and serve "at least 15 years in prison (less at most 15 percent credits) and was likely to serve at least 60 or 75 years in prison." Defendant further asserts that there was "significant evidence" of his incompetence even after his psychological evaluation, which compelled the conclusion that he "lacked the ability to rationally assist counsel or participate in the criminal proceeding in a rational manner."
The People have responded to defendant's arguments in this resumed appeal by seeking limitation of the issues defendant may raise. They contend that this court's review is restricted by the disposition of the petition in the Ninth Circuit, and they protest defendant's "attempt to use the Ninth Circuit's limited order as a wedge to reopen the entire case." Thus, according to the People, only the failure by counsel to advise defendant of the mandatory minimum sentence is properly at issue, and this question, although raised in his current petition for habeas corpus, is not raised in the opening brief on appeal. The remedy, they argue, is either to allow only that issue to be raised in a new opening brief, or to dismiss the appeal and request opposition to the habeas corpus petition.
Defendant responds that his arguments on appeal are within the scope of the claims raised in federal court, which did not limit the issues he may now raise. In his view, the Ninth Circuit's holding that trial counsel was deficient for failing to seek a certificate of probable cause "entitle[s] [defendant] to appeal in state court as if a certificate of probable cause had been issued." Therefore, defendant argues, he may present "any cognizable issue." Dismissal of the appeal at this point would only "continue [his] confinement in violation of his federal constitutional rights."
We disagree with defendant's position, but we also reject the People's representation of our role and the remedy they suggest with respect to the disposition of the appeal. We are not operating on a remand from a higher court. Whatever the Ninth Circuit projected as the outcome of defendant's appeal in state court does not dictate the actual disposition we are compelled to reach under state law. Federal courts in habeas corpus proceedings "hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." (Smith v. Phillips (1982) 455 U.S. 209, 221; see also People v. Zapien (1993) 4 Cal.4th 929, 989 ["decisions of intermediate federal appellate courts, while they may be of persuasive value, are not binding on state courts, even when they interpret federal law"].)
Thus, it makes no difference that the Ninth Circuit Court of Appeals directed the district court to order defendant's release "unless he is afforded an opportunity to appeal [his] conviction within a reasonable time." (413 Fed. Apps. at p. *5, 2010 U.S. App. Lexis at p. **7.) Likewise, while the district judge appropriately followed the instructions from the Ninth Circuit, its disposition does not determine the course of the ensuing state proceedings. The district court ordered defendant's release "unless" this court gave him an opportunity to appeal "on the merits . . . [of] his claim that he was denied effective assistance of counsel . . . when his trial counsel failed to request a certificate of probable cause on the issue of the trial judge's failure to inform him of the mandatory minimum sentences for each charge." This court granted defendant's motion, joined by the People, to recall the remittitur. That judicial act, however, must not be interpreted as an acknowledgment of the federal court's authority to instruct us on what issues we may and may not address. We must continue to follow state law as set forth by our Constitution and statutes and the directives of our Supreme Court.
As both parties are fully aware, section 1237.5 governs the scope of appellate review in criminal cases. It states: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." California Rules of Court, rule 8.304(b)*fn4 implements section 1237.5 by stating: "Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court with the notice of appeal required by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause."*fn5 Rule 8.320(a) sets a time limit of 60 days to comply with section 1237.5.
Our Supreme Court has directed the Courts of Appeal to apply these provisions "in a strict manner." (People v. Mendez (1999) 19 Cal.4th 1084, 1098.) Accordingly, "a defendant may not obtain review of certificate issues" unless he or she has complied with section 1237.5 and rule 8.304(b) "fully, and, specifically, in a timely fashion--that is to say, unless he has done what they require, how they require, and when they require." (Id. at p. 1099.) Absent such compliance, the appeal is not "operative" and the reviewing court must dismiss it. (Id. at pp. 1095, 1096.) Nor are state appellate courts authorized to overlook the deficiency and, in effect, grant relief from default. (Rule 8.60; see In re Chavez (2003) 30 Cal.4th 643 [appellate court errs by granting relief from default for failing to file timely statement of reasonable grounds for appeal, and statement may not be deemed constructively filed].) No writ of habeas corpus can supersede this basic procedural impediment to appellate review, and to the extent that the Ninth Circuit Court of Appeals believed or assumed otherwise, it was mistaken.
It is clear to this court that all of the issues defendant currently raises still require a certificate of probable cause. Defendant's prior appeal, in which he asserted the court's and trial counsel's failure to advise him of the prison term he could expect,*fn6 was dismissed for this very reason; indeed, the failure to obtain a certificate of probable cause is one of the grounds of his first habeas corpus petition in this court and the succeeding one in the federal district court. Ten years later, the errors now asserted remain ones requiring a certificate. A claim that a guilty plea was induced by an illusory promise is a certificate issue, inasmuch as it is a question going to the legality of the proceedings and, specifically, the validity of the plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 896; People v. Pannizon (1996) 13 Cal.4th 68, 76.) A challenge based on mental incompetence to enter a plea also requires a certificate of probable cause. (People v. Mendez, supra, 19 Cal.4th 1084, 1100; People v. Hodges (2009) 174 Cal.App.4th 1096, 1105.) Likewise, a certificate must be obtained to secure review of the failure to advise of the penal consequences of a defendant's guilty plea. (Cf. People v. Placencia (2011) 194 Cal.App.4th 489, 494 [raising court's failure to advise of immigration consequences requires certificate of probable cause]; People v. Robinson (1988) 205 Cal.App.3d 280, 282-283 [court's failure to advise defendant about pecuniary consequence of defendant's plea required certificate of probable cause]); People v. Pearson (1981) 120 Cal.App.3d 782, 791 [certificate required for contention that the magistrate and trial counsel misadvised him regarding mandatory consecutive term]; cf. People v. Stubbs (1998) 61 Cal.App.4th 243, 244 [certificate required for contention that defense counsel failed to advise defendant that he could challenge a search].)
Although we did recall the remittitur following the district court's order, we are no more authorized to consider the issues raised in this appeal than we were in 2002 when we issued the first opinion. We further denied defendant's two motions for relief from default for failing to obtain a certificate of probable cause, and the Supreme Court denied review of the second order.*fn7 Of course, the failure to obtain a certificate of probable cause is itself an issue that may be raised by petition for habeas corpus-- and it was, in this court, in the California Supreme Court (through defendant's unsuccessful petition for review), and eventually in federal court.
The Ninth Circuit's holding, which it reached without apparent recognition of the jurisdictional implications for future state court proceedings, amounted to an admonition to this court to address his appeal on the merits, at least with respect to the issue it believed might lead to a reversal. The district court complied with the Ninth Circuit's holding by issuing an order that took the next step in instructing us what we must do next: hear the appeal on the merits or acquiesce in defendant's release. The Ninth Circuit has thus put this court in an intolerable position: we either follow the federal courts' dictate -- in derogation of state law -- or assume responsibility for defendant's entry back into society whether or not his complaints on appeal have merit. This sort of straitjacket is one we are neither inclined nor permitted to accept. A finding that trial counsel provided ineffective representation by failing to obtain a certificate of probable cause simply cannot, ipso facto, create appellate jurisdiction.
The Ninth Circuit's error lies not in its determination that defendant's attorney was constitutionally ineffective, but in the remedy it prescribed. The premise of its holding was that defendant's plea was likely to be found invalid because the trial court and counsel failed to advise defendant, in advance of his plea, of the mandatory minimum sentence he faced. If the plea was indeed invalid on this ground, then the proper corrective course was to send the case back to the point at which the proceedings went astray. That would mean restoring the charges against defendant, which defendant could either admit by a new plea or deny and go to trial. Defendant would not have been entitled to be released unless the prosecution failed to timely prosecute him on the charges.
As the United States Supreme Court and even the Ninth Circuit have repeatedly acknowledged, remedies for federal error "should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." (U.S. v. Morrison (1981) 449 U.S. 361, 364; see also Chioino v. Kernan (9th Cir. 2009) 581 F.3d 1182, 1186 ["habeas remedies 'should not unnecessarily infringe on competing interests' such as a state's 'interest in the administration of criminal justice' "].) Where the state court "has the power to correct the constitutional error . . . it should be given the opportunity to do so." (Douglas v. Jacquez (9th Cir. 2010) 626 F.3d 501, 505.)
"[C]courts originally confined habeas relief to orders requiring the petitioner's unconditional release from custody . . . . [¶] In modern practice, however, courts employ a conditional order of release in appropriate circumstances, which orders the State to release the petitioner unless the State takes some remedial action, such as to retry (or resentence) the petitioner. . . . [¶] Such '[c]onditional orders are essentially accommodations accorded to the state' [citation], in that conditional writs 'enable habeas courts to give States time to replace an invalid judgment with a valid one . . . .' " (Harvest v. Castro (9th Cir. 2008) 531 F.3d 737, 741-742.) The United States Supreme Court has endorsed this practice: "The typical relief granted in federal habeas corpus is a conditional order of release unless the State elects to retry the successful habeas petitioner. . . ." (Herrera v. Collins (1993) 506 U.S. 390, 403, italics added.)
Here an appropriate conditional order would have given California courts the option of vacating defendant's plea, thereby curing the possible error the Ninth Circuit identified but permitting the state to proceed with its prosecution of defendant. Instead, the Ninth Circuit failed to give the California courts the opportunity to replace the judgment it considered likely invalid with a valid one, thereby infringing state interests. Because the lack of a timely obtained certificate of probable cause precludes appellate review, we remain without jurisdiction to address defendant's contentions on appeal, just as we were before defendant sought relief in federal court. We therefore must again dismiss the appeal notwithstanding the federal courts' improper disposition of the matter.
The appeal is dismissed.
WE CONCUR: PREMO, Acting P. J. MIHARA, J.