In The Supreme Court of the United States · 2016-03-18 · In The Supreme Court of the United...

No. _________ ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

PATRICK DISNEY MILLER,

Petitioner, v.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

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On Petition For A Writ Of Certiorari To The California Court Of Appeal

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PETITION FOR A WRIT OF CERTIORARI

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CRON ISRAELS & STARK PHILIP D. ISRAELS SAM J. ISRAELS 1541 Ocean Avenue, Ste. 200 Santa Monica, California 90401 (310) 451-9888 [email protected] [email protected]

MICHAEL V SCHAFLER JEFFREY M. CHEMERINSKY CALDWELL LESLIE & PROCTOR, PC 1000 Wilshire Boulevard, Ste. 600 Los Angeles, California 90017 (213) 629-9040 [email protected] [email protected]

ERWIN CHEMERINSKYCounsel of Record UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW 401 East Peltason Drive Irvine, California 92687 (949) 824-7722 [email protected]

Attorneys for Petitioner

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

Patrick Disney Miller pled guilty to the felony of possessing Diazepam even though under California law this crime is only a misdemeanor or an infraction. He did this without his lawyer ever informing him that he was pleading guilty to a felony for a mis-demeanor offense or of the significantly more onerous collateral consequences of a felony conviction as com-pared to that for a misdemeanor.

1. Whether it is ineffective assistance of counsel for a defense lawyer to allow a client to plead guilty to a felony, in light of all of the collateral consequences of a felony conviction, when the offense can only be a misdemeanor or infraction offense under state law and the client is not informed of that fact.

2. Whether it violates due process because of the absence of a knowing and intelligent waiver when a defendant pleads guilty to a felony without being informed or knowing that it is only a misdemeanor or infraction offense under state law.

3. Whether a person who has pled guilty can be estopped solely by that plea from subsequently chal-lenging the plea as being the result of ineffective assistance of counsel or for its failure to be knowing and voluntary.

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LIST OF PARTIES

The name of the Petitioner is:

Patrick Disney Miller

The name of the Respondent is:

The People of the State of California

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................. i

OPINIONS BELOW ............................................... 1

COURT’S JURISDICTION .................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED .... 1

STATEMENT OF THE CASE ................................ 2

A. Factual Background .................................... 4

B. Procedural History ....................................... 6

REASONS FOR GRANTING THE WRIT ............. 9

I. This Court Should Grant Review to Decide Whether It Is Ineffective Assistance of Counsel for a Defense Lawyer to Allow a Client to Plead Guilty to a Felony, in Light of the Collateral Consequences of a Felony Conviction, When the Offense Is a Mis-demeanor or an Infraction under State Law and the Client Is Never Informed of This ............................................................... 9

A. Legal Background ................................. 9

B. The California Court of Appeal’s Rul-ing Is Contrary to Law and this Court Should Grant the Petition and Vacate the Ruling .............................................. 11

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TABLE OF CONTENTS – Continued

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C. The Court Should Grant Review to Set-tle the Issues of Law Left Unresolved in Padilla: Whether It Is Ineffective Assistance of Counsel to Fail to Inform a Client that the Crime Was a Mis-demeanor in Light of the Important Differences in the Collateral Conse-quences Between a Misdemeanor and a Felony ................................................. 13

II. This Court Should Grant Review to Decide Whether It Violates Due Process in the Ab-sence of a Knowing and Intelligent Waiver when a Defendant Pleads Guilty to a Fel-ony without Being Informed or Knowing that It Is Only a Misdemeanor or an In-fraction under State Law ............................. 19

CONCLUSION ....................................................... 22

APPENDIX

The People of the State of California v. Miller, Case No. F061552, Opinion (Cal. App. Jan. 27, 2012), 202 Cal.App.4th 1450 (2012) .......... App. 1

The People of the State of California v. Miller, Case No. CV04100514, Minute Order (Cal. Sup. Ct., Fresno Cnty. Nov. 10, 2010) ........... App. 19

The People of the State of California v. Miller, Case No. CV04100514, Reporter’s Transcript (Cal. Sup. Ct., Fresno Cnty. Nov. 10, 2010) ...... App. 21

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TABLE OF CONTENTS – Continued

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The People of the State of California v. Miller, Case No. S200728, Order (Cal. en banc Apr. 25, 2012) ......................................................... App. 34

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TABLE OF AUTHORITIES

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CASES

Bady v. State, 995 So.2d 818 (Miss. App. 2008) ........ 15

Boykin v. Alabama, 395 U.S. 238 (1969) ................... 19

Brazeail v. State, 821 So.2d 364 (Fla. 1st DCA 2002) ........................................................................ 18

Henderson v. Morgan, 426 U.S. 637 (1976) ............... 20

Johnson v. Uribe, 682 F.3d 1238 (9th Cir. 2012) ....... 18

Keeler v. Superior Court, 2 Cal.3d 619 (1970) ........... 21

Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012) ............................................................... passim

McMann v. Richardson, 397 U.S. 759 (1970) .............. 9

Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012) ............................................................... passim

Ostrander v. Green, 46 F.3d 347 (4th Cir. 1995) ........ 18

Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ....... passim

People v. Miller, 144 Ill.App.3d 69 (1986) ........ 1, 21, 22

Smith v. O’Grady, 312 U.S. 329 (1941) ...................... 20

Smith v. United States, 348 F.3d 545 (6th Cir. 2003) ........................................................................ 17

State v. Freland, 334 Wis.2d 772 (2011) .................... 21

State v. Miller, 590 N.W.2d 724 (Iowa 1999) ............. 15

Strickland v. Washington, 466 U.S. 668 (1984) ................................................. 9, 10, 14, 15, 18

United States v. Hansel, 70 F.3d 6 (2d Cir. 1995) ........................................................................ 17

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TABLE OF AUTHORITIES – Continued

Page

United States v. Lewis, 660 F.3d 189 (3d Cir. 2011) ........................................................................ 21

Webb v. State, 334 S.W.3d 126 (Mo. 2011) ................. 18

CONSTITUTION

United States Const. amend. VI .............................. 1, 9

United States Const. amend. XIV, § 1 ......................... 2

STATUTES

28 U.S.C. § 1257(a) ....................................................... 1

California Health and Safety Code § 11350(a) ............ 4

California Health and Safety Code § 11357(c) ............ 5

California Health and Safety Code § 11550 ................ 5

California Vehicle Code § 23152(a) .............................. 4

OTHER AUTHORITIES

American Bar Association Model Rule of Pro-fessional Conduct 1.4(a) & (b) ................................ 16

Illinois Rule of Professional Conduct 1.4(a) & (b) ............................................................................. 17

Louisiana Rule of Professional Conduct 1.4(a) & (b) ......................................................................... 17

New York Lawyer’s Code of Professional Re-sponsibility, EC 7.8 ................................................. 17

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TABLE OF AUTHORITIES – Continued

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Texas Disciplinary Rule of Professional Con-duct 1.03(a) & (b) .................................................... 17

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OPINIONS BELOW

The California Court of Appeal opinion entered on January 27, 2012, is reported at People v. Miller, 202 Cal.App.4th 1450 (2012) and is reprinted in the Appendix at App. 1-18.

The post-conviction motion court’s judgment en-tered on November 10, 2010, is included in the Ap-pendix at App. 19-20.

The post-conviction motion court’s transcript on the motion to vacate the plea, held on November 10, 2010, is included in the Appendix at App. 21-33.

The California Supreme Court’s Order denying petitioner’s application for review entered on April 25, 2012, is included in the Appendix at App. 34.

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COURT’S JURISDICTION

The California Supreme Court denied review on April 25, 2012. The jurisdiction of the Court is in-voked under 28 U.S.C. § 1257(a).

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CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment VI:

“In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defence.”

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Constitution of the United States, Amendment XIV:

“[N]or shall any State . . . deprive any person of life, liberty, or property, without due process of law.”

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STATEMENT OF THE CASE

This case presents a pressing constitutional issue concerning the ability of a criminal defendant to challenge the validity of a guilty plea when it is the result of the lawyer’s failure to provide essential in-formation and when it is not knowing or voluntary. The California courts held that although the defen-dant, Patrick Disney Miller, pled guilty to a felony when, in fact, the charge only could have been a mis-demeanor or an infraction under California law, he could not challenge its constitutionality because of his guilty plea. The California courts’ decisions, which have the effect of eliminating any application of in-effective assistance of counsel in plea bargaining, require review and reversal in light of this Court’s recent decisions in Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012). Moreover, the issue requires review to clarify the scope of an attorney’s obligation to properly inform a client of the nature of charges and the collateral consequences of them, questions that were explicitly identified by all three opinions in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), and reserved for later review.

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Further, the Court should grant review to clarify the scope of the knowing and intelligent requirements for the entry of a plea. Because the defendant entered into a plea agreement without understanding that he was pleading guilty to a felony despite the fact the crime was only a misdemeanor or an infraction under California law, the guilty plea violates due process. The California courts’ decisions, which essentially eliminate any potential challenge to a guilty plea as not being knowing and voluntary, should be reviewed and reversed.

The Court of Appeal’s decision in this case poses a question of profound importance: Is it permissible to use the doctrine of estoppel to preclude a person from challenging a guilty plea on the grounds of in-effective assistance of counsel and denial of due process? If so, this Court’s decisions in cases such as Padilla, Frye, and Lafler can be rendered a nullity by state courts. State courts, as the California courts did here, can use the very existence of the guilty plea to prevent a criminal defendant from arguing that he received ineffective assistance of counsel or that his guilty plea was not knowing and voluntary. The con-flict between the decisions of the California courts in this case, using estoppel to preclude such challenges, and the prior decisions of this Court and the decisions of other courts across the country warrants the grant-ing of the petition for a writ of certiorari.

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A. Factual Background

In August 2004, the district attorney’s office for Fresno County filed a felony complaint against Mr. Miller charging him with five counts – two felonies and three misdemeanors. Most important for purposes of this Petition, Count I charged Mr. Miller with “Possession of a Controlled Substance, in violation of HEALTH AND SAFETY CODE SECTION 11350(a), a felony” based on his possession of Diazepam. It is rec-ognized now by everyone involved – the prosecutors, defense attorneys, the trial and the appellate courts – that Count I was an error. Possession of Diazepam does not qualify as a felony under the statute and can be charged only as a misdemeanor or an infraction.1

The other counts against Mr. Miller were charged correctly: Count II, felony possession of hydrocodone bitartrate (Vicodin), violation of California Health and Safety Code section 11350(a); Count III, misde-meanor driving under the influence of alcohol or drugs, in violation of California Vehicle Code section 23152(a); Count IV, misdemeanor being under the influence of a controlled substance, California Health

1 As the Court of Appeal stated: “Section 11350(a) addresses possession of certain controlled substances that were formerly classified as narcotics, and includes any drug listed in Schedule IV, ‘which is a narcotic drug.’ Diazepam is listed as a Schedule IV drug, but under the heading, ‘Depressants,’ which is separate from ‘Narcotic drugs.’ (§ 11057, subds. (c) & (d)(9).) Diazepam possession falls under section 11375, which specifies the nature of the offense as either an infraction or a misdemeanor.” (App. 7 n. 4 (emphasis added).)

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and Safety Code section 11550; and Count V, misde-meanor possession of more than 28.5 grams of mari-juana, in violation of California Health and Safety Code section 11357(c).

Based on his attorney’s advice, Mr. Miller entered a guilty plea to Count I, the mistakenly charged felony count, and Count III, misdemeanor driving under the influence of alcohol or drugs. As part of the plea agreement, all other counts against him were dropped. At the time of entering his guilty plea, Mr. Miller signed a Felony Advisement, Waiver of Rights, and Plea Form (the “plea form”). Under the terms of the plea, he was eligible to receive a maximum sen-tence of up to three years and two months of impris-onment, and up to forty-eight months of parole. The plea form also indicated that he may need to register as a narcotics offender.

The court signed the plea form, which stated, “The Court finds that the defendant’s plea(s) and admission(s) are freely and voluntarily made with an understanding of the nature and consequences there-of, and that there is a factual basis for the plea(s).” The court placed Mr. Miller on three years’ probation, imposed a suspended sentence of three years’ impris-onment, and ordered him to perform 250 hours of community service in lieu of a jail sentence. Mr. Miller was also advised of his duty to register as a

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narcotics offender,2 that the felony conviction may be used in later prosecutions, and that he would have to disclose the conviction on job applications for public employment or licensing.

At no point did either Mr. Miller’s counsel or the court notify him that he was pleading guilty to a crime that in fact did not exist – felony possession of Diazepam. There was nothing on the record or any other evidence indicating that Mr. Miller was aware of the error in the charge. No one in the lower court proceedings in this case has suggested otherwise. Nor did Mr. Miller ever understand the very significant difference in subsequent consequences to his pleading guilty to a felony as opposed to a misdemeanor or an infraction.

B. Procedural History

This mistake went unnoticed until April 2010, when Mr. Miller filed a timely motion to vacate the plea agreement. In his motion, Mr. Miller argued that his plea should be vacated or amended to reflect the fact that possession of Diazepam is a misdemeanor or an infraction. On November 10, 2010, the trial court held a hearing on Mr. Miller’s motion to vacate his

2 This is a further illustration of the consequences of plead-ing guilty to a felony when the crime was only a misdemeanor or an infraction. As the Court of Appeal noted, “Diazepam pos-session is not an offense requiring registration under section 11590.” (App. 17 n. 8.) But because of the error in charging and the plea, Miller is registered as a narcotics offender.

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plea. During the hearing, Mr. Miller’s new counsel argued that there was no evidence to suggest that Mr. Miller was advised of or knew that he was pleading guilty to a felony that did not exist. The court agreed that there was nothing in the record to indicate that Mr. Miller knew that he was pleading guilty to a felony that should have been a misdemeanor or an infraction. Although the trial court admitted that the plea was a mistake, it found that because Mr. Miller knew that he was pleading guilty to a felony (even if he did not know that it should have been a misde-meanor or an infraction), he was estopped from chal-lenging that plea.

The court explained:

I think that defense counsel made a mis-take. I think that the Judge made a mistake. I would almost, at this point, find less oner-ous what the District Attorney did, because it is up to the Judge to decide whether or not the plea is freely, voluntarily and intelligent-ly entered. It is up to the defense attorney to explain things thoroughly to clients so they can make a freely voluntarily and intelli-gently entered plea. I think a mistake was made. I don’t find it nefarious, but I think a mistake was made.

(App. 29-30, Transcript, Nov. 10, 2010.)

The court then ruled that although these mis-takes and deficiencies occurred, Mr. Miller had con-sented to them, albeit unknowingly, when he pled guilty. The court’s logic was simple: he was offered a

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plea deal to a felony and subsequently pled guilty to a felony. The court stated that such an agreement estopped him from challenging the conviction. In a summary Minute Order, the post-conviction motion court denied the motion to vacate. (See App. 19-20.)

The California Court of Appeal affirmed on the same basis. The Court of Appeal reasoned that “al-though . . . there was error in charging and accepting the plea to diazepam possession as a felony, for rea-sons of public policy, we conclude appellant is es-topped from vacating his plea and modifying his conviction, by his consent to the plea agreement.” (App. 2.) The Court of Appeal recognized that there was no dispute between the parties that possession of Diazepam is a misdemeanor and not a felony, and thus, that an error had occurred when Mr. Miller pled to a felony. The court also acknowledged that the error was undetected by the parties involved in the original proceeding.

Nonetheless, the court ruled that although the felony conviction, as compared to a misdemeanor or an infraction, has severe collateral consequences in terms of Mr. Miller’s right to possess a firearm, reg-istration as a narcotics offender, and loss of employ-ment opportunities, he cannot challenge the plea. The court’s reasoning, like that of the trial court, was that he agreed to plead guilty to a felony and that binds him, irrespective of his lack of knowledge of the er-roneous nature of the charge at the time. The court also noted the seriousness of Mr. Miller’s conduct and commented that there was “no indication the

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prosecution would have been unable to prove the re-maining felony charge alleged in the complaint.” (App. 15)

Mr. Miller filed a timely petition for review with the California Supreme Court. The California Su-preme Court denied review on April 25, 2012, over the dissent of Justice Kennard, who would have heard the case. (App. 34.)

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REASONS FOR GRANTING THE WRIT

I. This Court Should Grant Review to Decide Whether It Is Ineffective Assistance of Counsel for a Defense Lawyer to Allow a Client to Plead Guilty to a Felony, in Light of the Collateral Consequences of a Felony Conviction, When the Offense Is a Mis-demeanor or an Infraction under State Law and the Client Is Never Informed of This.

A. Legal Background

The Sixth Amendment of the United States Constitution guarantees a criminal defendant effec-tive assistance of counsel. Strickland v. Washington, 466 U.S. 668, 689 (1984). This means that no criminal defendant is to be left to the “mercies of incompetent counsel.” McMann v. Richardson, 397 U.S. 759, 771 (1970). The Court has “long recognized” that pleas are a critical stage for purposes of the Sixth Amendment,

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during which defendants have a right to effective assistance of counsel. Padilla, 130 S.Ct. at 1486.

In a series of recent opinions, this Court has con-sidered the precise rights to which a criminal defen-dant is entitled during the plea stage. For example, in Padilla, the Court held that a defendant is entitled to be informed of the potential deportation consequences of his plea. In two cases last term, Frye and Lafler, the Court elaborated on a criminal defendant’s right to the effective assistance of counsel at the plea bargain stage.

In Frye, the Court held that it was ineffective assistance of counsel to fail to inform a criminal de-fendant of a plea offer. The state had offered a plea deal which would have reduced the charge to a mis-demeanor with a ninety-day recommended sentence or to a felony with a recommended sentence of ten days in jail. Frye, 132 S.Ct. at 1405. The defense lawyer never communicated the plea agreement to the defendant, who subsequently pled guilty to a fel-ony and was sentenced to three years in prison. The Court held that despite the agreement to and entry of a later guilty plea, counsel’s performance was defi-cient and failed the first prong of the Strickland test because there is a clear duty of defense lawyers to communicate plea offers to their clients. Id. at 1409.

In Lafler, the defendant rejected a favorable plea offer pursuant to the concededly erroneous advice of counsel on the law and chose to continue to trial. At trial, he was convicted and received a substantial

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prison sentence that was more than four times greater than would have been imposed based on the plea offer. The Court first held that an ineffective assis-tance claim may be brought based on the rejection of a plea agreement. Before the Court, all parties ac-knowledged that the attorney’s performance, when he erroneously informed the client that he would not be found guilty of assault with intent to murder because the victim was shot below the waist, was deficient. Lafler, 132 S.Ct. at 1383-84. Thus, the only question was whether proceeding to trial instead of accepting a plea agreement can ever be deemed prejudicial. The Court held that an attorney’s poor advice with respect to a plea agreement, even if it results in a fair trial, can be prejudicial. The Court stated, “if a plea bar-gain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. . . . [P]rejudice can be shown if loss of the plea opportunity led to a trial resulting in a convic-tion on more serious charges or the imposition of a more severe sentence.” Id. at 1387.

B. The California Court of Appeal’s Ruling

Is Contrary to Law and this Court Should Grant the Petition and Vacate the Ruling.

The California courts concluded that because Mr. Miller pled guilty to a felony, he was bound by this agreement and was estopped from later challenging it. Such analysis is clearly erroneous under the Court’s rulings in Frye and Lafler, and arguably

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under Padilla as well. If the California courts’ rulings were correct – that a defendant cannot challenge a plea simply because he understood that he was plead-ing guilty, no matter how inept counsel’s performance may have been – no party could ever claim ineffective assistance based on a plea bargain. That rule is clearly contrary to this Court’s decisions in Frye and Lafler. See Frye, 132 S.Ct. at 1406 (stating that the Court has “rejected the argument made by petitioner in this case that a knowing and voluntary plea super-sedes errors by defense’s counsel”). In fact, it would allow state courts to negate this Court’s holding in Frye simply by holding, as the California Court of Appeal did here, that a defendant is estopped by the plea itself from later arguing that it was the product of ineffective assistance of counsel.

It is noteworthy that the California Court of Ap-peal’s decision is dated January 27, 2012, before the Court released the decisions in Frye and Lafler, which clarified the law in this regard. Because the Califor-nia courts’ analysis is so clearly contrary to estab-lished law in this regard, in light of Frye and Lafler, the Court may simply grant the petition and vacate the judgment below.3

3 Since this case is on direct appeal and was pending at the time of the Court’s decisions in Frye and Lafler, there is no issue regarding retroactivity. Moreover, in Lafler, this Court held that the right to effective assistance of counsel in plea bargaining was already established law and thus found that the state court de-cision there was “ ‘contrary to’ ” or an “ ‘unreasonable application’ ”

(Continued on following page)

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C. The Court Should Grant Review to Set-tle the Issues of Law Left Unresolved in Padilla: Whether It Is Ineffective Assis-tance of Counsel to Fail to Inform a Cli-ent that the Crime Was a Misdemeanor in Light of the Important Differences in the Collateral Consequences Between a Misdemeanor and a Felony.

Moreover, to the extent this case is not easily resolved based on Frye and Lafler, this Court’s review is necessary to clarify unresolved questions of law, reserved in Padilla, as to the scope of the duties of defense counsel to inform a client of the nature of the charges he faces in light of the difference in collateral consequences between a felony and a misdemeanor.

In Padilla, the Court expressly reserved the question of what types of collateral consequences require notification to the client prior to the entry of a plea. Indeed, this became a central point of debate between the majority opinion, the concurrence from Justice Alito, and the dissent from Justice Scalia. The majority decision explained that “because of the unique nature of deportation,” it need not decide the other types of consequences that require notification prior to entry of a plea. Padilla, 130 S.Ct. at 1481. Justice Alito pointed out a number of consequences that are also important and expressed concerns over

of clearly established law as announced by the Supreme Court. 132 S.Ct. at 1395 (citation omitted).

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extending the notification requirement into those contexts. Id. at 1487-88 (Alito, J., concurring) (“This case happens to involve removal, but criminal convic-tions can carry a wide variety of consequences other than conviction and sentencing, including civil com-mitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses.”). Justice Scalia’s dissent expressed the iden-tical concern – that there would be an increasing list of consequences to which an attorney must inform a client. Id. at 1496 (Scalia, J., dissenting) (“It is diffi-cult to believe that the warning requirement would not be extended, for example, to the risk of height-ened sentences in later federal prosecutions. . . . We could expect years of elaboration upon these new issues in the lower courts, prompted by the defense bar’s devising of ever-expanding categories of plea-invalidating misadvice and failures to warn.”).

Similarly, in Frye, the Court also identified the difficulties with defining the precise duties of defense counsel in the plea bargain process and reserved to a later date the task of defining more fully such duties. Frye, 132 S.Ct. at 1408.

To show ineffective assistance of counsel, a de-fendant must show both deficient performance by counsel and prejudice. Strickland, 466 U.S. at 689. To demonstrate deficient performance, a defendant must show that counsel’s representation fell below an ob-jective standard of reasonableness. Id. at 688. To

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demonstrate prejudice, a petitioner must show that, but for counsel’s errors, the result would have been different. Id. Both of these requirements are clearly met in this case.

At least two other courts have held that it was ineffective assistance of counsel when an attorney failed to inform his client that he was pleading guilty to a felony that should have been a misdemeanor. In Bady v. State, 995 So.2d 818, 820 (Miss. App. 2008), the court vacated a felony conviction and remanded to the lower court when it found that the defendant was not notified that his theft only qualified as a misde-meanor. In Bady, the defendant stole $349.99 worth of merchandise, however, under the statute, theft of over $500 was required in order for the conduct to constitute a felony. Id. The court held that because there was no indication that the defendant knew that he was entitled to a lesser charge and accepted the higher charge as part of a plea agreement, he was entitled to challenge the plea and conviction. In State v. Miller, 590 N.W.2d 724, 726 (Iowa 1999), the Iowa Supreme Court similarly held that counsel was ineffective and vacated the lower court for allowing a felony plea for conduct that should have been a misdemeanor.

Both Bady and Miller involved instances in which there were direct consequences in the length of a prison sentence from the entry of the wrong plea. In this case, there are similarly significant consequences to it being a felony conviction rather than for a mis-demeanor or an infraction. This was not merely the

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failure by the attorney to inform Mr. Miller of the collateral consequences of his conviction, but, further, the failure to inform the client that the collateral con-sequences could have been avoided entirely.

That Mr. Miller received ineffective assistance of counsel is demonstrated in analyzing each of the two prongs of the ineffective assistance of counsel test. First, an attorney has a duty under the law and un-der the canons of professional conduct to accurately inform the client of the charges against him. The re-quirement that an attorney inform and advise a client necessarily implies that the attorney accurately in-form the client, at least as to something so basic as the nature of the offense.

Courts look to a variety of sources, especially the codes of professional conduct, to determine the re-sponsibilities of counsel in a given situation. Padilla, 130 S.Ct. at 1482 (stating courts look to “the practice and expectations of the legal community” as outlined by the “prevailing professional norms”); see also Frye, 132 S.Ct. at 1408 (looking to professional codes of conduct to establish the standard for reasonableness). The American Bar Association (“ABA”) Model Rules and the rules of the states clearly impose a duty to provide relevant information to the client. The ABA Model Rules of Professional Conduct require that an attorney “promptly inform the client of any decision or circumstance with respect to which the client’s informed consent . . . is required,” ABA Model Rule of Professional Conduct 1.4(a), as well as “explain a matter to the extent reasonably necessary to permit

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the client to make informed decisions regarding the representations.” Id. 1.4(b); see, e.g., Illinois Rule of Professional Conduct 1.4(a) & (b); Texas Disciplinary Rule of Professional Conduct 1.03(a) & (b); Louisiana Rule of Professional Conduct 1.4(a) and (b); New York Lawyer’s Code of Professional Responsibility, EC 7.8 (“A lawyer should exert best efforts to ensure that decisions of the client are made only after the client has been informed of relevant considerations.”).

The duty to inform a client would be meaningless if it did not impose the requirement to provide accu-rate information to the accused. Frye, 132 S.Ct. at 1408 (“This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the ac-cused.”); see also United States v. Hansel, 70 F.3d 6 (2d Cir. 1995) (reversing based on the failure to in-form a client that he was pleading to counts that were time-barred).

The United States Court of Appeals for the Sixth Circuit explained that: “[a] criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available.” Smith v. United States, 348 F.3d

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545, 553 (6th Cir. 2003). Mr. Miller’s trial attorney obviously failed to do this.

A number of other state courts and circuit courts have similarly held the client received ineffective as-sistance of counsel when the attorney misinformed the client about the consequences of the plea. Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995) (“[W]here the client asks for advice about a ‘collateral conse-quence’ and relies upon it in deciding whether to plead guilty, the attorney must not grossly misinform his client about the law.” (citation omitted)); Webb v. State, 334 S.W.3d 126 (Mo. 2011) (stating that misin-forming the client about parole eligibility constituted ineffective assistance); Brazeail v. State, 821 So.2d 364, 366 (Fla. 1st DCA 2002) (stating that the “law of Florida has long recognized that a plea of guilty or nolo contendere may be vacated when the defendant has entered his plea as a result of mistaken advice by defense counsel as to the consequences of a plea”); Johnson v. Uribe, 682 F.3d 1238 (9th Cir. 2012) (find-ing ineffective assistance of counsel based on coun-sel’s failure to discover and inform the client that three sentencing enhancements were invalid).

As to the second prong of the Strickland analysis, there is no question that Mr. Miller suffered prejudice based on the plea to the felony as a result of counsel’s actions. To show prejudice, a defendant must show that the conviction or sentence would have been less severe. Lafler, 132 S.Ct. at 1385. There is no possible disagreement that under California law, and that in

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every jurisdiction, a misdemeanor or an infraction is less severe than a felony. The collateral consequences that Mr. Miller has incurred would not have been present if his plea was to a misdemeanor or an infrac-tion.

In sum, the obligations imposed by the profes-sional canons of responsibility and legal precedent require that an attorney provide accurate advice. The question raised, which is clearly presented to this Court by this case, is whether it was constitutionally ineffective to provide inaccurate advice in light of the consequences at issue. The California courts’ ap-proach, precluding any challenge based on the doc-trine of estoppel, conflicts with the prior decisions of this Court and with that of other courts. It truly would preclude any person who has pled guilty from asserting his rights under Frye and Lafler. This Court should grant review to clarify this important issue that has become more salient in light of these recent decisions.

II. This Court Should Grant Review to Decide

Whether It Violates Due Process in the Ab-sence of a Knowing and Intelligent Waiver when a Defendant Pleads Guilty to a Fel-ony without Being Informed or Knowing that It Is Only a Misdemeanor or an Infrac-tion under State Law

This Court long has recognized that it violates due process for a plea to be entered that is not volun-tary and intelligent. See Boykin v. Alabama, 395 U.S.

20

238, 242 (1969). In Henderson v. Morgan, 426 U.S. 637, 645 (1976), the Court stated “clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the of-fense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due pro-cess.’ ” Id. (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)).

In this case, Miller pled guilty to a felony without having any understanding or knowledge that the crime he was pleading guilty to was only a misde-meanor or an infraction under California law. He had no understanding or knowledge of the very significant differences in the consequences between pleading guilty to a felony as opposed to a misdemeanor or an infraction.

Here, in the context of the due process question, the California courts’ estoppel analysis makes even less sense. The California courts’ analysis of the issue – that because there was a guilty plea he could not raise a due process challenge – entirely abolishes the ability of a person to challenge whether a plea is knowing and voluntary. The mere existence of the plea precludes the challenge that it was unconstitu-tional.

Moreover, due process was violated in another sense as well. Mr. Miller pled guilty to an offense that

21

has no basis in law. Given that there are no common law crimes in the state of California, he pled guilty to a crime (felony possession of Diazepam) which does not exist. Keeler v. Superior Court, 2 Cal.3d 619, 631 (1970) (stating that there are no common law crimes in California). He is now the only person in California with a felony conviction for possession of Diazepam.

The California courts’ approach is in direct con-flict with that of other jurisdictions. In State v. Freland, 334 Wis.2d 772, 778 (2011), the court re-versed and remanded on due process grounds follow-ing a plea to a felony that should have only been a misdemeanor. The court found that the plea could not have been knowing and intelligent given that the conduct does not fall within the definition of a felony. Id.

In United States v. Lewis, 660 F.3d 189, 192 (3d Cir. 2011), the trial court mistakenly treated a sen-tencing enhancement as a separate crime. The court held that the conviction was plainly erroneous and could not stand: “a separate conviction for a crime that does not exist ‘has potential adverse collateral consequences that may not be ignored.’ ” Id. at 195-96 (citation omitted). Similarly, in People v. Miller, 144 Ill.App.3d 69, 70 (1986), the court held that “the of-fense with which petitioner was charged does not exist in the law and could not have been validly charged regardless of the facts alleged. Hence, not only is the indictment void and subject to attack at any time, but

22

the judgment consequently must be void also, and a void judgment may be vacated at any time.” Id. (emphasis added).

This Court should grant review of the California Court of Appeal’s decision because it is contrary to prior rulings of this Court and of other courts. It should decide the important issue of whether there can be a knowing and voluntary waiver if a client pleads guilty to a felony without being informed or knowing that the crime is actually a misdemeanor or an infraction under state law. This case squarely poses the question which has never been faced before by this Court as to whether a person can be estopped from challenging a plea as not knowing and voluntary simply because he pled guilty.

--------------------------------- ---------------------------------

CONCLUSION

The California Court of Appeal’s decision is in-consistent with this Court’s recent decisions in Frye and Lafler. Accordingly, this Court should grant, va-cate, and remand this for reconsideration in light of these decisions. Alternatively, this Court should grant review to resolve important questions concerning the right to effective assistance of counsel and the right

23

to a knowing and voluntary waiver in plea bargain-ing.

Respectfully submitted,

CRON ISRAELS & STARK PHILIP D. ISRAELS SAM J. ISRAELS 1541 Ocean Avenue, Ste. 200 Santa Monica, California 90401 (310) 451-9888 [email protected] [email protected]

MICHAEL V SCHAFLER JEFFREY M. CHEMERINSKY CALDWELL LESLIE & PROCTOR, PC 1000 Wilshire Boulevard, Ste. 600 Los Angeles, California 90017 (213) 629-9040 [email protected] [email protected]

ERWIN CHEMERINSKY

Counsel of Record UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW 401 East Peltason Drive Irvine, California 92687 (949) 824-7722 [email protected]

Attorneys for Petitioner

App. 1

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT The PEOPLE,

Plaintiff and Respondent,

v.


Defendant and Appellant.

F061552

(Super. Ct. No. CF04100514)

OPINION

(Filed Jan. 27, 2012)

APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits and Brent Bramer, Commissioners, and Jon N. Kapetan, Judge.1

Cron, Israels and Stark, Santa Monica, Philip D. Israels, and Sam J. Israels for Defendant and Appel-lant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

1 Commissioner Martin Suits entered into the plea bargain with appellant in February 2005; Commissioner Brent Bramer imposed sentence in accordance with the plea bargain and pro-bation officer’s report in April 2005. Judge Jon Nick Kapetan ruled on the motion denying modification of appellant’s convic-tion in November 2010.

App. 2

-ooOoo-

Appellant Patrick Disney Miller appeals the trial court’s denial of his motion to vacate his plea and modify his conviction from a felony to a misdemeanor. Miller was charged in an August 2004 complaint with unlawful possession of diazepam (Valium), as a felony under Health and Safety Code section 11350, subdivi-sion (a) (section 11350(a)),2 driving under the influ-ence (DUI), as well as other offenses. Diazepam possession is at most a misdemeanor pursuant to section 11375. In early 2005, appellant pled no con-test to the diazepam possession charge as a felony, as well as the misdemeanor DUI, and received three years of formal probation, which he successfully completed in early 2009. He raised no objection to his plea and conviction until April 2010, when he collat-erally attacked his plea and conviction by filing the motion at issue. Although we agree there was error in charging and accepting the plea to diazepam posses-sion as a felony, for reasons of public policy, we con-clude appellant is estopped from vacating his plea and modifying his conviction, by his consent to the plea agreement. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

According to police reports of the incident, in the late morning of July 14, 2004, appellant was caught

2 All further statutory references are to the Health and Safety Code unless otherwise indicated.

App. 3

driving 121 miles per hour on Interstate 5 north of El Dorado Avenue, in western Fresno County. He admit-ted to police he had taken Valium and Vicodin (hydro-codone) pills earlier in the morning and the police also detected the odor of burnt marijuana, although appellant denied smoking any marijuana. Police administered several field sobriety tests and deter-mined appellant was under the influence and unable to safely operate his car. Police then placed appellant under arrest. Appellant then admitted he had smoked marijuana in addition to taking the pills.

Police searched appellant’s car and found 102 pills of Valium, 169 pills of Vicodin, over an ounce of marijuana, and other drug paraphernalia. Toxicology reports of a blood sample taken approximately three hours after getting pulled over indicated appellant had Valium and marijuana in his system that morn-ing. When asked about the pills by the police, appel-lant told them he bought them in Tijuana, Mexico, and smuggled them across the border. He admitted he had no prescription for the pills and only used a couple pills a day.

A felony complaint was filed in August 2004, charging appellant with five counts: Count I was “POSSESSION OF A CONTROLLED SUBSTANCE, in violation of HEALTH AND SAFETY CODE SEC-TION 11350(a), a felony, was committed by Patrick Miller, who did unlawfully have in his/her possession a controlled substance, to wit, Diazepam (Valium).” The other counts were: felony possession of hydro-codone bitartrate (Vicodin), in violation of section

App. 4

11350(a) (count 2); misdemeanor driving under the influence of alcohol or drugs, in violation of Vehicle Code section 23152, subdivision (a), with a further allegation that appellant was driving “more than 30 miles per hour over the speed limit on a freeway or more than 20 miles per hour over the speed limit on any other street or highway” (count 3); misdemeanor being under the influence of a controlled substance, in violation of section 11550, subdivision (a) (count 4); and misdemeanor possession of more than 28.5 grams of marijuana, in violation of section 11357, subdivi-sion (c) (count 5).

In February 2005, appellant entered into a plea agreement where he would plead no contest to “Count 1 H&S 11350(a)” and count 3 (DUI). The remaining counts were dismissed. The terms of the plea agree-ment were set forth on a “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM.” As out-lined on the plea form, the maximum sentence he could receive as a result of his plea was three years two months in prison, and up to 48 months parole. The plea form also indicated another possible conse-quence of his plea may include registration, ostensi-bly as a narcotics offender. Appellant’s counsel reviewed the terms of the plea agreement with him and concurred in the pleas. At the end of the plea form was the court order, signed by the trial court, which stated in pertinent part: “The Court finds that the defendant’s plea(s) and admission(s) are freely and voluntarily made with an understanding of the nature and consequences thereof, and that there is a factual basis for the plea(s).”

App. 5

The probation department recommended formal probation. Appellant was sentenced in April 2005. Defense counsel suggested appellant be permitted to attend a specific comprehensive drug treatment program in Tarzana, California, in lieu of any time in custody, be ordered to see a therapist, and be placed on formal probation for three years. The trial court agreed, found appellant a suitable candidate for pro-bation, suspended imposition of judgment for three years, placed appellant on formal probation for the duration, and also ordered he perform 250 hours of community service in lieu of serving 29 days in cus-tody. Prior to sentencing, appellant was advised of his duty to register as a narcotics offender under section 11590, use of the conviction in any later prosecutions, disclosure of the conviction in any job application for public employment or licensing, and prohibition against possessing any firearms. Probation super-vision was transferred to Los Angeles County, where appellant resided.

In 2006, appellant moved to modify his probation conditions to be less restrictive and noted he suffered from a blood clot in his leg and cervical spine disease. The court eliminated the community service hours requirement because of his medical conditions.

After successfully completing his probation term in 2008, appellant petitioned the court to set aside his plea and dismiss the complaint pursuant to Penal Code section 1203.4, subdivision (a). Included with the petition was acknowledgment that appellant was advised that terminating probation would not absolve

App. 6

him of the obligation to disclose his conviction in certain circumstances, and to refrain from possessing or controlling a firearm, in accordance with Penal Code section 1203.4, subdivision (a). The trial court granted the petition in February 2009.

In April 2010, appellant filed a motion to vacate his plea and modify his conviction, on the grounds that a felony conviction for unlawful possession of diazepam was outside the trial court’s subject matter jurisdiction, since at most this crime was a misde-meanor. Although the trial court agreed a mistake had been made, it denied the motion on grounds that equitable estoppel barred appellant from vacating his conviction. The trial court commented that appellant had received the benefit of a plea bargain in light of the fact that there was another felony available to the People to prosecute him, possession of Vicodin, which was dismissed as part of the plea. Appellant obtained the requisite certificate of probable cause and ap-pealed the trial court’s ruling. (Pen. Code, § 1237.5.)

DISCUSSION

Appellant asserts a single claim: that the equita-ble estoppel doctrine has no application to the circum-stances of his case. He contends equitable estoppel applies only where a person is looking to receive a benefit that reduces the direct penal consequences of the judgment, for example, a reduced sentence. He argues, however, that he has fulfilled all the require-ments of the plea agreement and probation term, and is not asking to reduce the term or otherwise receive

App. 7

some sort of recompense for the error. Instead, he seeks essentially only to eliminate the collateral con-sequences of the erroneous conviction and plea to a felony, that is, the negatives associated with a felony conviction and the burden of declaring his prior con-viction to potential employers and licensing agencies.3

Respondent concedes that the plea agreement erroneously stated that diazepam possession was a felony and that appellant’s plea to the same was in error.4 Respondent, however, asserts that appellant is estopped from modifying his conviction on equitable estoppel grounds.5 The facts are not in dispute and we

3 According to the probation officer’s report, in 2005, appel-lant reported he had never been employed and lived off a trust fund. Appellant declines to note another consequence of his plea to a felony conviction is the fact that it remains available to be pleaded and proved in subsequent prosecutions should appellant choose to engage in further criminal conduct. (Pen. Code, § 1203.4.) We note anecdotally that appellant has not provided any specific examples of instances where he has suffered preju-dice or harm resulting from his felony conviction. 4 Section 11350(a) addresses possession of certain controlled substances that were formerly classified as narcotics, and in-cludes any drug listed in Schedule IV, “which is a narcotic drug.” Diazepam is listed as a Schedule IV drug, but under the head-ing, “Depressants,” which is separate from “Narcotic drugs.” (§ 11057, subds. (c) & (d)(9).) Diazepam possession falls under section 11375, which specifies the nature of the offense as either an infraction or a misdemeanor. Hydrocodone possession is properly a felony under section 11350(a). 5 Respondent also raises a procedural argument that appel-lant’s claim should be construed as a writ of error coram nobis and then denied for failing to meet the requirements of such a

(Continued on following page)

App. 8

review the application of the estoppel doctrine de novo, as a question of law. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.) As noted above, we conclude that for reasons of public policy, appellant is estopped from asserting his claim of error to vacate and modify his conviction.

In People v. Ellis (1987) 195 Cal.App.3d 334 (Ellis), the defendant admitted as part of her plea bargain that her prior federal bank robbery convic-tion constituted a “serious felony” for enhancement purposes. The defendant challenged the plea, arguing that case law dictated that federal bank robbery elements did not meet the California “serious felony” elements as a matter of law. The Ellis court acknowl-edged this, concluding that the defendant was ad-mitting a legal falsehood, and that the trial court’s act of imposing the serious felony enhancement was in excess of its statutory authority and jurisdiction. (Id. at p. 342.) The court also found, however, that estop-pel principles could apply where the court acted only in excess of its jurisdiction (as opposed to a complete lack of jurisdiction), by exceeding its statutory author-ity to accept an erroneous plea agreement. In Ellis, the issue was “whether defendant, by her consent to

writ. We need not address this argument as we conclude appel-lant’s claim is cognizable on appeal. (See People v. Feyrer (2010) 48 Cal.4th 426, 433, fn. 5 (Feyrer) [finding cognizable an appeal from a denial of a motion to modify a felony conviction to a misdemeanor for a wobbler offense underlying a plea agreement after termination of probation].)

App. 9

the plea bargain . . . should be estopped from later asserting a claim of error.” (Id. at p. 343.)6

Ellis outlined the public policy interests at stake in determining whether estoppel should preclude a later claim of error. “ ‘Whether [a defendant] shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when “[t]o hold otherwise would permit the parties to trifle with the courts.” [Citation.] On the other hand, waiver of procedural requirements may not be permitted when the allowance of a de-viation would lead to confusion in the processing of other cases by other litigants. [Citation.] Substantive rules based on public policy sometimes control the allowance or disallowance of estoppel. . . .’ ” (Ellis, supra, 195 Cal.App.3d at p. 343.)

6 Appellant’s briefs confuse the doctrine of “equitable estop-pel” with simple “estoppel.” The doctrine discussed in Ellis, and other cases involving criminal plea agreements in excess of juris-diction, relates to simple estoppel, which generally provides that a party is barred from taking certain positions contrary to their previous actions, such as consenting to a plea agreement. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 486 and fn. 21.) The focus is on the actions of the party arguing against estoppel, not on the other involved parties. Equitable estoppel, however, generally discussed in the civil context, focuses on knowledge of the parties, intent and reliance. These elements are not part of the analysis in this case, as appellant conceded at argument. (See People v. Castillo (2010) 49 Cal.4th 145, 155 and fn. 10.)

App. 10

The Ellis court noted the various angles of public policy, commenting, “[t]he law . . . has an interest in insuring that, even where a defendant has committed some criminal act, his criminal conduct matches up with a statute that proscribes the conduct. Only in this way can the judicial system insure that a defen-dant’s criminal conduct will receive the punishment the Legislature intended. . . . [¶] We therefore have no doubt that strong public policy countenances against allowing defendants to plead guilty to crimes they did not commit.” (Ellis, supra, 195 Cal.App.3d at p. 345.)

On the other hand, “the presence of a plea bargain injects other policy considerations into the calculus. Just as the law has no interest in punishing defen-dants more severely than has been ordained by the Legislature, the law also has a strong interest in seeing to it that defendants do not unfairly manipu-late the system to obtain punishment far less than that called for by the statutes applicable to their conduct.” (Ellis, supra, 195 Cal.App.3d at p. 345.)

In performing its analysis of whether or not de-fendant was estopped, the Ellis court noted that the defendant’s case was far from the situation where an innocent person is convicted, or where the legal mis-take was of a magnitude of unfairness that vacating the plea agreement was the only equitable solution. (Ellis, supra, 195 Cal.App.3d at pp. 344, 346.) The court also noted that the defendant received a signifi-cant reduction in sentence in that 11 of the 13 counts against her were dropped and her maximum sentence reduced by three years, that defendant had plausible

App. 11

tactical reasons for admitting the serious felony, and that the record made no indication the prosecution could not have proved all of the charges, implying that the balance of the plea agreement was in favor of defendant. (Id. at pp. 346-347.)

Appellant cites to People v. Soriano (1992) 4 Cal.App.4th 781 (Soriano), where the appellate court found that the public policy concerns noted in Ellis were not present for the defendant there and reversed the judgment. (Soriano, supra, at p. 786.) The infor-mation had charged Soriano with a violation of Penal Code section 115 for attempting to file a forged in-strument, “to wit, a death certificate.” In exchange for a no contest plea, the trial court suspended imposi-tion of sentence and placed Soriano on three years’ probation. (Id. at p. 783.) The parties agreed Soriano’s plea was “defective because a death certificate is not an ‘instrument’ within the meaning of Penal Code sec-tion 115.” (Ibid.) The court explained, “what we have here is a legal impossibility. Soriano could not have been guilty of violating Penal Code section 115 by attempting to file a forged instrument because, as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instru-ment within the meaning of section 115.” (Id. at p. 784.)

The Soriano court went on to discuss Ellis and its legal conclusions: “Whether a defendant who has sought action in excess of the trial court’s jurisdiction is estopped to complain of that action depends on various considerations of public policy. [Citation.] . . .

App. 12

[¶] In reaching [its] conclusion, the Ellis court consid-ered that defendant’s federal felony offense did in-volve serious, dangerous conduct, and that the record showed plausible tactical reasons for her decision to admit the prior after an initial motion to strike on the very grounds she raised on appeal. [Citation.]” (Soriano, supra, 4 Cal.App.4th at pp. 785-786.)

The Soriano court, however, found that “[t]here are no similar considerations in this case. Soriano is neither trifling with the courts [citation] nor attempt-ing to have it both ways [citation], nor are there any other public policy considerations favoring estoppel.” (Soriano, supra, 4 Cal.App.4th at p. 786.) Soriano’s conduct did not jeopardize the safety of others. Also, it is important to note that Ellis, nor similar cases addressing the estoppel issue in the context of a plea agreement, does not require evidence that one of the parties was “trifling” with the court in order to invoke estoppel. That is simply one of the public policy fac-tors to consider when making an estoppel determina-tion.

Here, unlike in Soriano, we conclude public poli-cy considerations akin to those considered by the Ellis court dictate appellant be precluded from vacating his plea and modifying his conviction. As noted above, appellant essentially complains of the collateral conse-quences he must suffer for having a felony conviction – the negatives associated with a felony conviction and the burden of declaring his prior conviction to potential employers and licensing agencies.

App. 13

Penal Code section 1203.4 governs the discharge of a petitioner after successful completion of a proba-tion term. It does not specify that it applies only to felony convictions or pleas. It provides specific in-stances where collateral consequences of a person’s conviction remain past the dismissal of his or her accusations. Notably, “in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.” (Pen. Code, § 1203.4, subd. (a) (1).) Additionally, “the order does not relieve [the defendant] of the obligation to disclose the conviction in response to any direct ques-tion contained in any questionnaire or application for public office, for licensure by any state or local agen-cy, or for contracting with the California State Lottery Commission. [¶] (2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under [former Penal Code section 12021].”7 (Pen. Code, § 1203.4, subds. (a)(1), (a)(2).)

7 Former Penal Code section 12021 makes it a felony for any person convicted of a felony or any person “addicted to the use of any narcotic drug,” to own, purchase, receive, have in his or her possession, custody, or control any firearm. (Effective Jan. 1, 2012, former § 12021 was repealed and reenacted without substantive change as Pen. Code, § 29800.)

App. 14

To the extent the record indicates, the apparent practical collateral consequences for appellant’s re-tention of a felony conviction are that he remains prohibited from owning or using firearms (former Pen. Code, § 12021), and he must continue to register as a narcotics offender whenever he changes resi-dences for five years after the termination of proba-tion, that is, February 2014.8 (§§ 11590, 11594.)

Before sentencing, appellant was advised of the collateral consequences of a plea agreement.9 He and his attorney signed documents acknowledging the

8 Diazepam possession is not an offense requiring registra-tion under section 11590. 9 At oral argument, appellant asserted that this court in People v. Jones (1989) 210 Cal.App.3d 124 set forth the proper procedure for trial courts to follow when the prosecution seeks to impose a potentially unauthorized sentence. In Jones, the defen-dant agreed to plead guilty to four felonies, admit a five-year prior serious felony enhancement and waive his right to appeal. The trial court discussed at length with defendant the conse-quences of his plea and, essentially, by waiving his right to appeal, he was giving up his right to challenge on appeal the serious felony enhancement, which the court admitted may not be authorized. His agreement to receive an additional five-year term and waive his right to appeal was in exchange for the plea agreement that took a life term off the table. (Id. at p. 130.) Based on the facts of that case, the appellate court concluded that Jones understood the consequences of his plea and had waived his right to challenge the additional five-year sentence. Based on the record in this case, we agree with the trial court that took appellant’s plea that he was advised of, and under-stood, the consequences of his plea and we decline to conclude the trial court here was required to have proceeded in the same manner as the trial court in Jones.

App. 15

same. Appellant’s admission his conduct constituted a felony conceded he had engaged in some conduct rising to the level of a felony. (Ellis, supra, 195 Cal.App.3d at p. 342.) Unlike the defendant in Sori-ano, appellant’s conduct here was serious and jeop-ardized the safety and well-being of every motorist in his path the day he was arrested. Moreover, the rec-ord makes no indication the prosecution would have been unable to prove the remaining felony charge alleged in the complaint, felony possession of 169 pills of Vicodin, or that the sentence imposed for that felony would have been any different from the actual sentence imposed and the lifetime collateral conse-quences of such a plea and sentence.10 Like Ellis, this case does not involve a situation where an innocent person was convicted or where the legal mistake was so egregious that vacating the plea is the only equita-ble result.

Appellant also relies on People v. Velasquez (1999) 69 Cal.App.4th 503 (Velasquez). There, the defendant agreed to a prison term of no more than three years

10 Moreover, Penal Code section 1192.7, subdivision (a)(2) prohibits plea bargaining in any case where the information charges any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, “unless there is insufficient evidence to prove the People’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.” Based on the record before us, it may be inferred that the prosecution would have sought out similar punishment to that agreed to even if appellant had gone to trial. (See Feyrer, supra, 48 Cal.4th at p. 443, fn. 9.)

App. 16

for violating Penal Code section 647.6, subdivision (c)(2) (annoying or molesting a child, with a qualify-ing prior conviction). He was placed on felony proba-tion and sentenced to one year in the county jail. He was advised that if he violated the terms of his proba-tion, he could receive a prison sentence of no more than three years, although the statutory terms for the offense were two, four, or six years. When his proba-tion was later revoked, the trial court sentenced the defendant, over his objection and based on the advice of the prosecutor, to the four-year term, but stayed one year to bring it in accordance with the plea agreement. (Velasquez, supra, at p. 505.)

In reversing the trial court, the appellate court explained, “[t]he fair inference is that the prosecutor simply misread the range of punishment for annoying or molesting a child with qualifying prior conviction and erroneously advised appellant of the wrong theoretical maximum sentence.” (Velasquez, supra, 69 Cal.App.4th at p. 505.) The court went on: “The sen-tence here imposed is simply not authorized by law even if it is fair under the circumstances. The parties may not enter into a negotiated disposition, either by negligence or design, which specifies a sentence not authorized by law.” (Ibid.)

The Velasquez court rejected the Attorney Gen-eral’s estoppel argument on grounds that the defen-dant did not “stipulate” to the three-year sentence, but only agreed that he would suffer a sentence of no more than three years if he violated probation. (Velas-quez, supra, 69 Cal.App.4th at pp. 505-506.) The

App. 17

appellate court found that defendant had not know-ingly, intelligently, and expressly agreed to the sen-tencing irregularity, unlike in other cases relied upon by the Attorney General where the defendants were estopped from complaining. (Id. at p. 506.) The court explained, “[the defendant] did not agree or ‘stipulate’ to any sentencing irregularity to obtain the benefit of a negotiated disposition. The negotiated disposition left open the possibility of a lawful two-year state prison sentence if he violated the terms and condi-tions of probation. This is simply not a case where the defendant would be estopped because he is ‘trifling’ with the courts. [Citation.]” (Id. at pp. 506-507.)

Here, appellant argues he is not “trifling” with the courts, especially given that he is not asking for a reduction in the sentence, but merely for relief from the collateral consequences by modifying the nature of his offense.

The counterargument is one even the Velasquez court acknowledges, “[a] defendant may not retain the favorable aspects of his negotiated disposition and at the time jettison its unfavorable aspects. [Cita-tion.] . . . ‘Well established is the rule that the People will be held strictly to the terms of a plea bargain with a criminally accused. [Citations.] ’ [Citation.]” (Velasquez, supra, 69 Cal.App.4th at p. 507.)

Here, appellant’s sentence fell well within the terms of his plea agreement, which specified a maxi-mum term of three years two months in prison – he received three years’ probation instead. Moreover, he

App. 18

stipulated through his plea to a felony. Therefore, the facts and record of this case are much more consistent with Ellis than Soriano and Velasquez.

Finally, as respondent points out, appellant had ample time to challenge or appeal his 2005 plea agreement, but neglected to do so until a year after the 2009 termination of his probation. It appears it was not until appellant, as an ex-felon, was apparently caught in possession of a firearm in Los Angeles County that the circumstances of his original plea warranted his attention. Our conclusion that appel-lant is estopped by his consent to his plea agreement is “ ‘in harmony with the proper operation’ of the plea bargaining system. [Citation.]” (People v. Collins (1996) 45 Cal.App.4th 849, 865.)

DISPOSITION

The judgment is affirmed.

Franson, J. WE CONCUR:

Levy, Acting P.J. Kane, J.

App. 19

Superior Court of California, County of Fresno

CENTRAL DIVISION 1100 Van Ness Avenue, Fresno, CA 93724.

MINUTE ORDER

Defendant Name: Miller, Patrick

Case No: CF04100514

Address: [Omitted] Woodland Hills, CA 91367 USA.

Date Sentenced: 04/27/05

AKAs: Miller, Patrick Disney

DOB: [Omitted] Sex: M Hair: Brown Height: 6' 1"DLN: [Omitted] CA Eyes: Brown Weight: 280

Violation Date: 07/14/04 BAC: Prosecuting Atty: Avent, Jon Paul BKG #: Issuing Agency: District Attorney DR #: F1226-435-04Filing Agency Case: 2004F25072

Date of Order: 11/10/10 Judge: Kapetan, Jon Dept: 32

Charging Doc: Original Complaint

CNT OL CHARGE 1 F 11350(a) HS

CNT OL CHARGE 3 M 23152(a) VC

Docket dt

11/10/2010

Seq Text

1 Hearing held on 11/10/2010 at 08:30:00 AM in Department 32, 3rd Floor for Motion Withdraw Plea.

2 Judicial Officer: Kapetan, Jon, Judge

3 Courtroom Clerk: Williams, Edith

App. 20

4 Court Reporter: Fredericks, Ashley

5 Philip Davis Israels appearing with defendant.

6 Samuel J Israels appearing with defendant.

7 People present and are represented by, Jon Paul Avent, Deputy District Attorney.

8 Written motion by Defense requesting to withdraw plea.

9 Motion denied.

10 Defendant remains on no status.

11 Minutes of E. Williams entered by S. Raley on 11/10/2010.

App. 21

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF FRESNO

Before the Honorable Jon Nick Kapetan, Judge

Department 32

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THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.


Defendant.

) ) ) ) ) ) ) )

No. CV04100514-9

REPORTER’S TRANSCRIPT

Fresno, California NOVEMBER 10, 2010

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REPORTER’S TRANSCRIPT -oOo-

APPEARANCES:

FOR THE PLAINTIFF: ELIZABETH ANN EGAN, District Attorney of the County of Fresno BY: JON PAUL AVENT Deputy District Attorney

FOR THE DEFENDANT: PHILLIP ISRAELS, SAM ISRAELS Attorney at Law 1541 Ocean Avenue, Suite 200 Santa Monica, California 90401

App. 22

TERRY WAPNER Attorney at Law 401 West Fallbrook Avenue, Suite 101 Fresno, California 93711

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REPORTED BY: ASHLEY R. FREDERICKS, CSR CERTIFICATE NO. 12939

INDEX

SESSIONS

PAGE

NOVEMBER 10, 2010

MORNING SESSION 1

[1] NOVEMBER 10, 2010 – MORNING SESSION

(The following proceedings were had in open court in the presence of the Court, Counsel, and the Defendant:)

THE COURT: Patrick Miller, 514.

MR. ISRAELS: Thank you, Your Honor. Philip Israels representing Mr. Miller. I’m also here with Sam Israels.

MR. WAPNER: And me by the way.

MR. ISRAELS: And Mr. Wapner as well.

MR. AVENT: Jon Paul Avent for the People.

App. 23

THE COURT: Today is the date set for ruling on the motion. We’ve been going – I know that Counsel has been coming up from Los Angeles on several different occasions. The last hearing I set, thinking that my vacation was only for one week, but evidently it was for two, I wasn’t at the last hearing. I apologize. And I understand you were here, of course.

With that being said though, gentlemen, it is your motion. Anything further regarding the motion?

MR. ISRAELS: Your Honor, I think the mo-tion speaks for itself. I think what we’re talking about is whether there is an over breaching here. We’re talking, really, basic constitutional law, conservative constitutional law and separation of powers. And we believe in this case the prosecutor has over breached.

We thought that by coming up here and talking to the [2] prosecutor and that once the prosecutor was made aware of what happened here, that we’d have a fairly simple solution in changing this to a misde-meanor. This has not happened. And so we’re very, very concerned about that. It seems to be a continual violation here of overreaching.

There was a similar motion made in the Superior Court in Los Angeles in reference to a companion case, and the Judge their [sic] said the case law holds that any plea needs to be voluntary and intelligent. And if what you say, in which I don’t disbelieve is what occurred, then the defendant plead [sic] guilty to an unlawful possession of Diazepam as a felony; there-fore, he could not have been entering an intelligent

App. 24

plea since those facts don’t constitute a violation of that law and don’t constitute a felony.

THE COURT: You’re talking about the pos-session of a weapon as a felony, that Mr. Miller suf-fered or was accused of in Los Angeles? Is that what you’re talking about?

MR. ISRAELS: That’s correct, Your Honor. And –

THE COURT: And that’s the ruling that the Judge in Los Angeles County –

MR. ISRAELS: That’s correct.

THE COURT: – found, and that’s why he believed that Mr. Miller was not a felon in possession.

MR. ISRAELS: That’s correct.

THE COURT: Okay.

MR. ISRAELS: And then I think the Ve-lasquez case is [3] really the case that is most on point. And if we read that case, just in the beginning, what they say there is: To our knowledge, David Rodriguez Velasquez presently occupies a singular place in California penal history. That is to say he is the only person ever to have been sentenced to state prison for three years for annoying or molesting a child with a qualifying prior conviction in violation on Penal Code Section 647.6. For this offense the Legis-lature has determined that the punishment is either two years, four years, or six years in prison. We modify the judgment to the only permissible sentence.

App. 25

We can imagine an appellate court looking at that and paraphrasing it and saying to our knowl-edge, Patrick Miller presently occupies a singular place in California penal history. That he would be the first person ever to be convicted of possession of Diazepam as a felony, 11350. And we can imagine a [sic] appellate court looking at it and using very, very similar words.

I don’t believe that the District Attorney knew at the time of the plea what was going on in that sen-tencing. In fact, I don’t believe that the defense attorney, and with all due respect, obviously you were not the Judge, but with respect to the court here, knew what was happening in that regard; but, I think the Court needs to consider public policy here and not send a message to the District Attorney, or to any prosecutorial office, as far as that is concerned, and [4] say, you know, it is okay. You can charge whatever you want. Because not withstanding the separation of powers, not withstanding your limited duty and your ethical duty only to charge what, in fact, is a violation of the law, then you can charge whatever you want. And I think that’s a message that the Court does not want to give. I would submit on that, Your Honor.

THE COURT: Response?

MR. AVENT: Yes, Your Honor. I don’t want to belabor this. I’ll stand on the fundamental points, and throughout these proceedings the defendant has entitled his motion a motion to vacate, although at various points in time his motion said it might be this

App. 26

and it might be that, but even in his last pleading referred to it as a motion to vacate. That is what it is. It is a nonstatutory motion to vacate the judgment.

The Supreme Court, our Supreme Court has been clear. That’s a coram nobis petition. Whether he wants to call it that or not, that’s what it is. He can’t meet the elements of that writ. He just can’t do it.

It goes even farther. It goes even farther. There is the estoppel argument, and I’m going to submit on what I already put down on paper on the estoppel argument. And I wanted to correct a couple of things in defendant’s supplemental points and authorities.

He asserts that the plea agreement was the defendant was [5] looking at prison, when he went before Judge Bramer to be sentenced, but that is not the case. This plea agreement was for no initial state prison by the defendant and by the People. That’s what it was. That’s what the records will show. And I don’t know where Counsel was – where he thought or came to assert that his client was looking at state prison at the time of sentencing, because he wasn’t. It just wasn’t happening.

And the Velasquez case, it is important – it is important to know that the Velasquez case is in direct appeal. And the procedural posture of the case, where the case is in front of a court, is very important. It is very important. Velasquez is direct appeal. Velasquez was dealing with a sentence that shouldn’t have been imposed on direct appeal, by a defendant, who

App. 27

asserted his claims in a timely manner as required by the statutes. This defendant has not done that.

This defendant plead [sic] – and I do agree with Counsel. I think that everybody back when this plea was entered didn’t realize what they were doing. And if they did, something different would have taken place. And I would submit it would have been the same outcome, if they would have realized what they were doing, he would have simply plead [sic] to Count Two, but I digress.

The defendant is bringing, what I will call these chameleon claims before the Court. He is saying, Judge, you have to grant my motion because a mis-take was made, and you [6] have to construe it as the right procedural vehicle, even if it’s not a motion to vacate.

Your Honor, I don’t think that’s an appropriate way to frame an argument. You have to just grant my motion on whatever legal theory is appropriate. Which legal theory? I don’t know. And, again, I don’t want to – and I do want to address the issue of Coun-sel says what’s troubling is that the District Attorney wouldn’t just agree to what we’re asking. Okay. Your Honor, that’s a red herring of an argument.

The People have a right to stand on the law and the procedure. Yes, this is a procedural argument that I’m making. I have no problem with making that ar-gument. I have a right to make that argument. And it’s not like it’s not some ethical issue. This is standing on

App. 28

well established Supreme Court precedent. So I’ll submit it.

THE COURT: Any response?

MR. ISRAELS: Yes, Your Honor. In refer-ence to the sentencing issue, he said, well, time of sentencing wasn’t actually going to state prison. Ob-viously he has state prison hanging over his head. So what was the situation at that time I think is really not material to this case in that sense.

In reference to what we call this motion, I think Picklesimer, which we quoted and cited at 48 Cal.4th 330 at page 339, a 2010 case, I think really deals with that issue. They say, look, it doesn’t matter what you call it. You can call it coram nobis, you can call it habeas, you can call it a [7] motion to vacate, maybe it should be called a writ of mandate. That’s not the issue. The issue is what we do in this situation, and certainly a court has the obligation to deal with this situation, and that’s what they’re saying.

And in reference to the estoppel argument, I mean, talk about red herrings, I would suggest that’s the biggest red herring here because in fact there was nothing, absolutely nothing, in the record which indicates that Mr. Miller or his attorney had anything to do with setting this up. If, in fact, Mr. Avent can quote some place in the record where they said, well, you know, we talked about this. And we think that Mr. Miller, this is the best thing for him to do, be-cause even though it is not a felony, we’re going to call it a felony for this purpose, and this is what he wants

App. 29

to do. There is absolutely nothing that says that he set this situation up.

In fact, I think the record would indicate that if anybody is responsible, it would be the District Attor-ney’s Office. And certainly the Court, who should have caught it. And I have to say even the defense attorney should have caught it at some point and say, hey, wait a second, what are we doing here. Again, Mr. Avent talks about standing by the law, the real response by any of those three parties would be, hey, wait a second. We are not standing by the law. And I’m asking the Court, here, to correct that situation and stand by the law. Submit.

THE COURT: All right then. When – I remember when [8] ya’ll first came in here, I thought too something as far as equity is concerned because I thought something, you know, something was wrong here. Something was wrong.

He pleaded to something that was charged as a felony that was in fact not a felony. And I, quite frankly, a little embarrassing to me that I had to sit here and I had to write out what I wanted to say today because it is a little confusing. But he pleaded to something that wasn’t a felony. With that being said, however, I think that estoppel does come in. I think that he got the benefit of what he expected. He got the benefit of the plea bargain.

I think that defense counsel made a mistake. I think that the Judge made a mistake. I would almost, at this point, find less onerous what the District

App. 30

Attorney did, because it is up to the Judge to decide whether or not the plea is freely, voluntarily and intelligently entered. It is up to the defense attorney to explain things thoroughly to clients so they can make a freely, voluntarily and intelligently entered plea. I think a mistake was made. I don’t find it nefarious, but I think a mistake was made. However he got the benefit of his plea. With that being said, I believe that principles of equitable estoppel do pre-clude the defendant from vacating his conviction in this case. He is not entitled to wipe out his conviction and then go about his way. He intended to enter a plea to a felony, the People intended the defendant to enter a plea to a felony, and the Court accepted [9] that plea. The Court did so after satisfying itself that the plea was entered freely, voluntarily and intelli-gently.

The fact that the particular facts of the conduct defendant was admitting, as charged in the pleading, could never have constituted a felony offense, wash something which could have been corrected at the time of the plea – as defendant had in fact been charged with another felony for his possession of Valium. He could have pleaded to that and got the benefit.

Defendant cannot be permitted to escape un-scathed by returning to the Court after his conviction is final and having the entirety of those proceedings invalidated so that they can no longer be a felony so that he can no longer be a felon. He should not be per-mitted to trifle with the courts, and that’s contained

App. 31

within the case I’m about to site [sic], People versus National Automobile & Casualty Insurance, 2000, 82 Cal.App.4th 120 at 125 and 126.

The distinction between a lack of jurisdiction over the cause and an act in excess of jurisdiction has significant consequences. For instance, subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel. By contrast, when the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. A litigant who has stipulated to a procedure in excess of [10] juris-diction may be estopped to question it when to hold otherwise would permit the parties to trifle with the courts. And that’s what I’m finding if I were to grant this motion.

He may have a motion to withdraw his plea. I don’t know if that’s timely and et cetera at this point based on a lack of knowing, voluntary and intelligent waiver. But even at that, I don’t know if that would be successful.

MR. ISRAELS: Well, really –

THE COURT: With that being said, I made my ruling. Anything for the record though?

MR. ISRAELS: No. I think you’ve laid out the record. You’ve indicated that you believe – well, I’m not sure in reference to the knowing and intelli-gent waiver. You said the Court found that there was

App. 32

a knowing and intelligent waiver. But I’m not sure how you believe – do you believe that there was a knowing and intelligent waiver here? Even though the defense counsel and –

THE COURT: Sir, that is not for me to de-cide.

MR. ISRAELS: All right.

THE COURT: The Court previously did. What I’m saying is that based upon equitable estop-pel, I believe at this point that you’re precluded from your motion to vacate the plea and modify the convic-tion because he got the benefit of the plea bargain. That’s what I’m saying. With that being said your motion is denied. Anything further?

MR. ISRAELS: Nothing further, Your Honor.

[11] THE COURT: All right then. Thank you, gentlemen.

MR. ISRAELS: Thank you, Judge.

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[12] STATE OF CALIFORNIA ) ) ss. COUNTY OF FRESNO )

I, ASHLEY R. FREDERICKS, Official Shorthand Reporter, do hereby certify and declare that I was the duly appointed and acting Official Stenographic Re-porter for the Superior Court of the State of California,

App. 33

County of Fresno, on the hearing of the foregoing matter held November 10, 2010; that the foregoing transcript, pages 1 through 12, inclusive, is a com-plete, true and correct transcription of the steno-graphic notes as taken by me in said matter on said date.

DATED: Fresno, California 12/27/2010

/s/ Ashley R. Fredericks ASHLEY R. FREDERICKS, CSR.

Certificate No. 12939

App. 34

Court of Appeal, Fifth Appellate District – No. F061552

S200728

IN THE SUPREME COURT OF CALIFORNIA

En Banc

THE PEOPLE, Plaintiff and Respondent,

v.

PATRICK DISNEY MILLER, Defendant and Appellant.

(Filed Apr. 25, 2012)

The petition for review is denied.

Kennard, J., is of the opinion the petition should be granted.

CANTIL-SAKAUYE Chief Justice

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