THE PEOPLE,
A158676
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 11/9/20
CERTIFIED FOR PUBLICATION; (Marin County Super. Ct. No. SC206592)
Patrick Sean O‘Hearn appeals from the denial of his motion to vacate a guilty plea to charges of making a criminal threat. Agreeing that
FACTS AND PROCEEDINGS BELOW2
The Underlying Offense
On October 19, 2018, approximately 11:30 p.m., the San Rafael Police Department responded to a report of O‘Hearn acting erratically in the presence of Rachel D. and Sheryl C., elderly women who lived in the same apartment complex as O‘Hearn. Officers Lara Gavlick and Anthony Scalercio met with O‘Hearn in his apartment, with which they were familiar as they had been there on numerous occasions in connection with prior complaints of his aberrant conduct. O‘Hearn denied participating in any altercation with the two women and “rambled about random topics and continued to say that everyone was lying.” The arresting officers suspected O‘Hearn had “mental health issues,” and considered whether he was eligible for commitment under
During the police interviews with the women, Rachel D. expressed her frustration with having to live in the same apartment complex as O‘Hearn. At the time O‘Hearn confronted the women, Rachel was helping Sheryl move some items from her apartment. While they were in a stairwell, O‘Hearn yelled obscenities at the women and threatened to kill them. The women then entered Rachel‘s apartment. A while later, they went to Sheryl‘s apartment to get her dog and take it for a walk. O‘Hearn, who was then standing on a landing outside his own apartment, began shouting at them again, declaring: “I‘m going to fucking kill you guys,” and “I‘m going to kick your ass.” He then entered his apartment, slamming the door behind him, while continuing to yell: “I‘m going to kill you guys.” Rachel said she was terrified by O‘Hearn, and Sheryl also expressed fear of him.
Officers Gavlick and Scalercio arrested O‘Hearn for making criminal threats in violation of
The Charges
On October 23, 2018, O‘Hearn was charged by the Marin County District Attorney with violation of
On September 1, 2020, the Marin County Superior Court issued a certificate of probable cause. The appeal challenging the denial of O‘Hearn‘s motion to withdraw his plea is now properly before us.
At the arraignment the next day, O‘Hearn was represented by a public defender. On November 1, 2018, after the public defender declared a conflict, the court appointed Robert Casper to represent O‘Hearn. That same day, O‘Hearn entered a plea of not guilty. Two weeks later, O‘Hearn hired private counsel and the court relieved Casper, who returned the case file to O‘Hearn. On November 15, Casper provided “discovery” related to the case to O‘Hearn‘s new attorney, Manton Selby.4 The “discovery” presumably contained the police report.
On December 3, 2018, represented by Selby, O‘Hearn pled guilty to the making of criminal threats and admitted a probation violation in exchange for which two other probation violations were dismissed with Harvey waivers.5
However, as neither Selby, the prosecutor, nor the court appeared to realize, the form by which O‘Hearn waived his constitutional rights and accepted the plea offer—defined in its caption as a “Disposition Commitment (Cruz/Vargas Waiver)“—was not signed by Selby, as required by the form waiver. Instead, O‘Hearn signed not only on the line on the form designated for the “Defendant” to sign but also, and on the same date, on the line designated for the signature of the “Attorney for Defendant.” The plea form explains that the signature of counsel confirms counsel has “fully advised my client in the above-entitled matter as to his/her rights pursuant to the decisions of the California Supreme Court in People v. Cruz (1988) 44 Cal.3d 1247 and the California Court of Appeal in People v. Vargas (1990) 223 Cal.App.3d 1107; and People v. Carr (2006) 143 Cal.App.4th 786, and to the consequences of the Court finding a willful violation of the terms of this disposition agreement.”
Selby never appeared again in the case. On January 29, 2019, O‘Hearn appeared for sentencing with attorney Elizabeth Berg, who was apparently also brought into the case pursuant to a contract with the Calabria Law Group. (See discussion, ante, at p. 4, fn. 4.) The court sentenced O‘Hearn to three years of felony probation, with a stay away order regarding both victims and the housing complex in which they resided, and numerous other conditions. Most salient for present purposes, as recommended by the probation department, O‘Hearn was required to “submit to chemical testing at the request of any peace or probation officer to determine drug content or alcohol content of your blood [and] [p]articipate in treatment, therapy, and counseling as directed by Probation.” The court also ordered that O‘Hearn “[p]articipate in psychotherapy as directed by Probation.” As a circumstance in mitigation of his offense, the presentence report noted that O‘Hearn “has been diagnosed with bi-polar disorder and not taking his medication at the time of the instant offense.” This is the earliest indication in the record O‘Hearn suffered from a mental illness or disorder.
On February 21, 2019, the case was put back on the calendar by the public defender who, before again raising his conflict, advised the court that there
Subsequently, appellant made a Marsden6 motion seeking to have Casper replaced as counsel, and Casper also asked to be relieved. At a hearing on April 3, in response to the court‘s earlier request that Casper investigate whether there were grounds upon which O‘Hearn might move to withdraw his plea, Casper advised the court that he had looked into the matter and found no basis for such a motion. Casper told the court that he “went over [the transcripts of the pretrial proceedings] several times to see if there was any evidence of coercion or lack of understanding or O‘Hearn not having been advised of a key right or something of that nature, and I didn‘t see anything. [¶] It appeared O‘Hearn, on paper, understood the nature of his plea and freely and voluntarily chose to plead. I can‘t speak to what was in his mind, certainly. But, within the transcript, it appears that O‘Hearn was properly advised. He did enter the appropriate waivers and entered a plea of guilty. And it appears that there was some kind of disposition where several charges, as well as a couple [of] probation violations, were dismissed in contemplation of the deal. [¶] So, in my, you know, view, I don‘t think there‘s a lawful basis to withdraw the plea on that basis that is, in terms of duress. And there was nothing that was related to me that caused me to change my mind other than what appears to be, as we see sometimes, buyer‘s remorse.”
At the close of the hearing, the court denied O‘Hearn‘s Marsden motion and granted Casper‘s request to be relieved. The matter was then again taken off calendar to provide O‘Hearn time to determine whether he wanted to file a motion to withdraw his plea in propria persona “or find new counsel who can take a look at that transcript and disagree with Casper.” On May 20, attorney Michael Coffino agreed to represent O‘Hearn in filing a motion to withdraw his plea.
The Motion to Withdraw the Plea
The motion to withdraw prepared by Coffino was based on the contention that the plea was the consequence of Selby‘s ineffective assistance. Specifically, the motion claimed that Selby “barely met with his client,” made a single court appearance before the guilty plea, and then failed to attend the sentencing hearing, and at some point lost the case file, to the detriment of subsequent counsel and O‘Hearn. Selby never explained to O‘Hearn what the elements of potential defenses were, did not inquire about his extensive
In a declaration, Coffino stated that O‘Hearn‘s 800-page medical record showed he had been hospitalized for mental health problems at Atascadero and Napa State Hospitals. And in 2019, O‘Hearn had been admitted to Marin General Hospital, where it was noted that he had a history of schizophrenia and was diagnosed as currently suffering “psychosis and schizoaffective disorder.” O‘Hearn had been prescribed numerous antipsychotic and anticonvulsive medications and mood stabilizers. In April 2019, when he went to the emergency room of Marin General Hospital to refill a prescription for benzodiazepine, he was told to see a psychiatrist but became irritable and left without seeing the doctor or refilling the prescription.
According to the motion to withdraw, O‘Hearn told Selby about his history of mental illness but Selby did not pass on this information to the court or the district attorney, nor did he undertake any investigation of O‘Hearn‘s history of mental illness.
Coffino also discovered and provided the court with State Bar records showing that Selby had been repeatedly found to have failed to provide his clients competent legal services. He was publicly disciplined by the State Bar four times for misconduct respecting his representation of clients and suspended from practice twice, in 2005 and 2011.
Coffino additionally learned that one of O‘Hearn‘s victims, Sheryl C., had a criminal record with numerous arrests and convictions for crimes of moral turpitude, including providing false information to a peace officer, petty theft, and petty theft with a prior. Although the district attorney provided this information to Selby, who could have used it to for impeachment purposes, he had no recollection of it when Coffino spoke with him.
In his motion papers, O‘Hearn argued that Selby “did not perform as a reasonably competent attorney at the guilty plea stage, in investigating the case, in negotiating a plea bargain, or in presenting mitigation evidence,” and that an attorney in Selby‘s position “has a duty to conduct a reasonable investigation . . . in order to make informed decisions about how best to represent the client. (Strickland v. Washington (1984) 466 U.S. 668, 691.) Failure to investigate the facts may constitute ineffective assistance. (In re Hill (2011) 198 Cal.App.4th 1008, 1017; In re Edward S. (2009) 173 Cal.App.4th 387, 407 . . . . Failure to investigate and present a mental state defense may also be ineffective assistance of counsel. (Williams v. Taylor (2000) 529 U.S. 362 . . . .)”
The
The deficiency in Selby‘s representation most heavily emphasized by the motion to withdraw the plea, was his failure to investigate O‘Hearn‘s lengthy mental history. O‘Hearn disclosed his mental history to Selby when the latter questioned his competence to stand trial, but Selby did not relate O‘Hearn‘s mental health to the development of a defense. As the motion to withdraw pointed out, conviction of making criminal threats requires specific intent, which can be negated by a mental disorder, and
As the motion to withdraw also emphasized, Selby made no effort to present any such evidence, which was abundant, either in court or in an effort to negotiate a more favorable disposition. O‘Hearn‘s recent diagnosis of psychosis and schizoaffective disorder, his use of antipsychotic medications, and his history of repeated psychiatric hospitalizations might have provided the basis of a successful defense to the charge. But voluminous medical records presenting this evidence went unused because Selby failed to conduct an investigation that would readily have disclosed it.
At the close of defense counsel‘s statement, the court asked him, “How do I know that Selby did not talk about the facts with O‘Hearn? And assuming all that you have said is true, what‘s the evidence that no reasonable attorney would have acted as did Selby, resulting in a finding of ineffective counsel?” Counsel responded that the evidence of Selby‘s conduct was provided by (1)
At the hearing on the motion, the trial court allowed that Selby‘s conduct “seems to be something that wouldn‘t normally happen with a 422 charge, that 422 charges like this are oftentimes negotiated down to a non-strike, and it seems a little—his conduct seems a little suspect to me.” On the other hand, the court noted that it had heard only from O‘Hearn, which might be unfair to Selby.
At that point, defense counsel offered to supplement the evidence provided by securing Selby‘s direct testimony. A hearing for that purpose was conducted on September 24, 2020.
Attorney Selby‘s Testimony
Aware of the court‘s concern about his departure from the case without requesting permission, Selby testified that he did not personally seek leave of the court to terminate his representation of O‘Hearn because “[t]he law firm that was hired was the Calabria firm. They set a fee, and they were paid. They signed a contract. I was handling the firm [sic] as the attorney assigned to that case.” After O‘Hearn entered his plea but before he was sentenced, a dispute arose between Selby and Calabria stemming from Selby‘s refusal to take case assignments in San Mateo and Santa Clara Counties, not just Marin, as Calabria desired. Selby also felt it unnecessary to seek leave to depart from the case because he knew that after he terminated his relationship with the firm, his cases would be turned over to other attorneys affiliated with Calabria Law Group.
Selby was unable to remember whether he met with O‘Hearn once or twice, and lost the case file without having made a copy. He did not give
Selby admitted he did not “undertake any investigation in this case” and simply conveyed to O‘Hearn the district attorney‘s offer. He did not ask the prosecution to allow O‘Hearn to plead to a misdemeanor because O‘Hearn had so many misdemeanor priors that it would be “absurd” to “ask for something that would make me look idiotic in the eyes of the district attorney‘s office.” The only lesser offense he may have discussed with the district attorney‘s office was a misdemeanor probation violation. “[The District Attorney] was not interested at that time in talking about it” but “[i]t may have come up later.”
Asked whether he ever spoke to O‘Hearn about his mental health history, Selby stated that he had, and that he had “at least an initial concern that [O‘Hearn] would not be competent,” but “I determined that was not correct, that he was competent to proceed.” They did not discuss “whether there were mental defenses . . . because that would come up later after the prelim.” Selby‘s doubts about O‘Hearn‘s competency arose from “[t]he fact that he had committed multiple offenses at the same location against multiple victims, in some cases the same victims, and that they all involved being out of control, at least raises a suspicion; so when I met with him, I wanted to find out that in my mind he was competent to proceed.” Selby‘s concern was that O‘Hearn “was able to understand what he was charged with, make appropriate decisions, and cooperate with me; and I determined that to my satisfaction.” Asked whether he made “any efforts to obtain O‘Hearn‘s mental health records,” Selby answered “No.”
Selby told O‘Hearn
On cross-examination, Selby agreed with the district attorney that he received her offer before he met with O‘Hearn in jail and that the gist of “the deal was that he was getting out on the day of sentencing.” Nevertheless, Selby was “surprised when O‘Hearn said that he wanted to take the deal,” because “from the time he said he didn‘t want to take it, until we came to court, there‘d been no suggestion by him that he might take a deal, or as normally occurs, where he would want to get me to sweeten it a bit. There was none of that at all.”
Asked by the district attorney whether he went over the plea form with O‘Hearn, Selby stated that he had, “and we filled out the plea form while other matters were being handled.”8 Selby also testified that he did not believe O‘Hearn was under any sort of duress when he entered his guilty plea, and that in his experience the only thing unusual about this case was that there had “been a flat-out-non-interest in a plea and then walking out of custody and wanting to accept the offer.” Asked how long he had practiced criminal law, Selby answered “52 years.”
O‘Hearn testified that after he was arraigned and posted bail he received a letter at his apartment from an organization in Los Angeles called the Calabria Law Group offering to provide him legal help. Though he later realized it was a mistake, he was so “desperate to get some real legal help” that he called the number provided in the letter and explained to an unnamed person that he had a court date in a few days and needed to speak to someone very soon to “explain the whole situation.” After the person on the phone said the Calabria firm would help, he “hired” the firm and was told he would be contacted before the court date. Nobody did contact him then, however, and no one from the Calabria Law Group appeared at the preliminary hearing, requiring that hearing to be rescheduled for the next day, with O‘Hearn remanded and placed in jail overnight.
O‘Hearn stated that he met with Manton Selby for the first time at the preliminary hearing the next day. They met in the visiting room of the jail and spoke for “[a]bout 10, maybe 15 minutes” immediately prior to the hearing. At no point during that discussion did Selby speak with him about the evidence or any defense; nor did Selby show him a copy of the police report, or describe the content of that report, or the criminal complaint. According to O‘Hearn, Selby “basically ran over the important charge, the terrorist threat, and that was about it, and basically, I knew at that point that it was probably out of his league, and it was a bad situation.”
Asked what happened at the preliminary hearing, O‘Hearn said: “A deal was thrown at me,” meaning that “there was a deal that was set up.” Asked whether Selby ever explained possible defenses there might be to the charge of criminal threats, or if Selby had asked him to provide his account of what had happened, O‘Hearn answered, “No.”
O‘Hearn testified that he did not know that the offense to which he pled guilty was a strike until after he entered the plea. Asked whether he would have pled guilty to the offense if he had then known it was a strike, O‘Hearn said, “I don‘t believe I would have, but the situation was so out of control, I can‘t say for sure.” O‘Hearn was not told by Selby that if probation was revoked he might have to serve time in state prison, because that subject was not discussed. O‘Hearn also testified that Selby never asked him about “evidence regarding the credibility of the woman who brought the charges against him,” and never asked any questions about his mental health history. The day he pled guilty was the last day O‘Hearn ever saw Selby.
On cross-examination, O‘Hearn admitted his criminal history “began in the 1980‘s,” that he had previously pled guilty and reviewed plea forms with his
After O‘Hearn entered his plea, he phoned Selby from jail “at least 10 or 12 times” but “wasn‘t able to get ahold of him.” He only spoke with Selby on the phone once, and that was after he was sentenced.
On redirect, O‘Hearn testified that on the previous occasions on which he entered guilty pleas and signed a plea form, his attorneys gave him copies of the police reports and he had “much more time to speak with them.”
In subsequent testimony the next day, O‘Hearn reiterated that he never received the police report from Selby and Selby never told him what was contained in the report. Nor did he ever speak with Selby before the day he entered his guilty plea. The only time he and Selby met face-to-face prior to the preliminary hearing was on November 15. The meeting lasted 15 minutes “at most,” and Selby did not at that time discuss any plea offer.9
The Ruling of the Trial Court
The trial court prefaced its ruling with the observations that “the manner in which [O‘Hearn] was represented was not ideal,” referencing “this Calabria [Law Group‘s] practice of soliciting business from Southern California and having contractor‘s fill in. . . I would say it‘s a bad practice that may have resulted in the records not being kept in a single place [and] Selby thinking he was just an employee of this practice and that they were the attorney of record. Nonetheless, the court concluded that the “failures articulated in the motion aren‘t borne out by any measure of evidence based on the testimony of Selby.” The court conceded that “there could have been additional evidence to iron out when Selby actually visited the defendant in the jail, whether it was before or after the offer that was given by [Deputy District Attorney] Lamb. I considered even suggesting that you can get that, but ultimately concluded that even if the meeting was before the offer from [the deputy district attorney], that could be a mistake an attorney could make; and I have no reason to disbelieve Selby‘s representation that he advised the defendant prior to the date of the preliminary hearing of the offer, and the defendant came in wanting to change his mind.
“The defendant got a decent deal with quite a number of dismissals on the positive side, and I don‘t find any reason to disbelieve Selby‘s representation
“So assuming that Selby made some mistakes, the court‘s not in a position here, hearing what I heard, to conclude as a matter of law, that those fell below any particular standard of care.
“Perhaps an expert might have been able to articulate that, persuade the court that his behavior fell under a reasonable standard of care, but I‘m not finding that Selby‘s conduct fell below a reasonable standard of care in the industry, notwithstanding what I said about it not being ideal.
“I think more importantly, I don‘t think there‘s any proof by any measure, certainly not clear and convincing, that the defendant would not have pled guilty had Selby done what Coffino suggests he should have done in the 10 days between the not guilty plea and the preliminary hearing date, which obviously is a short period of time, and a lot of people do plead guilty in that short period of time.
“So based on all of those reasons, the motion to withdraw the pleas is denied. The plea will stand.”
DISCUSSION
To demonstrate ineffective assistance of counsel, a defendant must show that counsel‘s performance was inadequate when measured against the standard of “a reasonably competent attorney,” and that counsel‘s performance “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington, supra, 466 U.S. at pp. 686-687.) “In determining whether counsel‘s performance was deficient, a court must in general exercise deferential scrutiny” and “view and assess the reasonableness of counsel‘s acts or omissions . . . under the circumstances as they stood at the time . . . .” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) “[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The chief issue in this case is not whether Selby timely advised O‘Hearn of certain rights and the nature of the charged offense, the issues the trial court dwelt upon, as to which there was some conflicting evidence. The dispositive question is more fundamental and involves no conflicting evidence: Did Selby‘s admitted failure to investigate either his client‘s mental health or the
A defendant seeking relief on the ground of ineffective assistance of counsel must establish not just “that counsel‘s representation fell below an objective standard of reasonableness . . . under prevailing professional norms,” but as well “that there is a reasonable possibility that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.) As we pointed out in People v. Jones (2010) 186 Cal.App.4th 216 (Jones), “the question is not what the ‘best lawyers would have done,‘” “even what most good lawyers would have done,” but simply whether “some reasonable lawyer” could have acted, in the circumstances, as defense counsel acted in the case at bar. [Citations.] A defendant must show that his attorney‘s performance fell below this objective standard of reasonableness by a preponderance of the evidence.” (Jones, at p. 235.)
Jones also pointed out that “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” (Jones, supra, 186 Cal.App.4th at p. 235, citing Strickland v. Washington, supra, 466 U.S. at p. 698.) Therefore, as to both performance and prejudice, we owe the trial court no deference. “As to those issues, the trial judge‘s findings are “not binding on this court, and we may reach a different conclusion on an independent examination of the evidence produced at the hearing he conducts even where the evidence is conflicting. [Citation.]“‘” (Jones, at p. 236.)
Under the foregoing guidelines, we have little difficulty determining the trial court‘s conclusion that Selby provided O‘Hearn effective assistance is unsustainable.
Selby‘s Performance was Professionally Deficient
In In re Edward S., supra, 173 Cal.App.4th 387 (Edward S.), the trial court sustained a petition alleging the minor came within the provisions of
attorney, a public defender, filed a declaration in support of the motion for a new jurisdictional hearing, stating that because his office lacked an investigator, he was required to investigate his own cases, which was “all but impossible” due to his heavy caseload.
Former counsel in Edward S. knew at the outset that the prosecution‘s case rested almost entirely on the testimony of the victim, T.S., who had just turned 10, and her mother, Sherry, who was also the minor‘s aunt, and that the claims of these two prosecution witnesses were uncorroborated. Prior to trial, the former attorney had been informed by Jason S., a relative of the minor, that T.S. “had been molested by an uncle and perhaps also her father, and therefore had been exposed to more sexual conduct than most 10-year-olds, but also that on a specific occasion she threatened to lie in order to work her will. Jason also provided the names of others who could corroborate this information, and told [former counsel] how he could contact these individuals. Additionally, Jason informed [prior counsel] that Sherry was angry with [the minor] because of his relationship with Jason and for this reason, as well as her sensitivity about the molestation of her children by other relatives, had threatened [the minor] that she would ‘send him back to juvenile hall.’ ” (Edward S., supra, 173 Cal.App.4th at p. 408.) Despite the potential use of this information to impeach T.S. and Sherry, the prosecution‘s most crucial witnesses, former counsel made no investigatory efforts.
Acknowledging that former counsel made “errors,” the trial court found the evidence he was ineffective inadequate because it mainly consisted of Jason S.‘s testimony at the motion for a new jurisdictional hearing, which the trial judge disregarded because he believed it consisted of “multiple layers of hearsay” and was not credible due to the fact that Jason was an ex-felon. (Edward S., supra, 173 Cal.App.4th at p. 408.) Rejecting that reasoning, we pointed out that “Jason‘s credibility was not to be measured from the perspective of a trier of fact at a trial on the merits, as the court did, but from that of an attorney charged with the duty to defend a client against criminal charges.” (Id. at p. 410.) The question was not whether Jason‘s claims were true, but whether the attorney‘s failure to inquire into their truth was reasonable; i.e. would a reasonable attorney in his shoes have felt a professional duty to his client to verify those claims. We found the absence of any effort to verify Jason‘s claims unreasonable “[g]iven Jason‘s long relationship with and knowledge of appellant, Sherry, and T.S. and her siblings, the
In Edward S., the ineffective assistance arose from unsustainable demands on an overworked public defender who lacked the resources to pursue information his client had been framed. The problem here is not the lack of resources but the blindness of counsel to factors indicating the availability of a potential mental state defense.
As we have said, Selby was told by O‘Hearn of past but undefined mental health issues, and the police report, which Selby possessed, indicated that the arresting officers had had numerous prior contacts with O‘Hearn regarding his aberrant behavior and considered whether they should initiate commitment proceedings under
Selby never asserted any strategic reason for failing to learn whether his client‘s mental state provided the basis for a possible mental defense. The only excuse he offered for this failure is that the availability of mental defenses “would come up later after the prelim.” But by failing to seek a continuance or otherwise prevent O‘Hearn from entering his guilty plea before Selby understood whether the case was defensible, and failing to negotiate the disposition with the prosecution from an informed position, which investigation would have enabled him to do, Selby rendered potential mental state defenses meaningless.
No reasonable lawyer could have acted as Selby did in the circumstances of this case.
Selby‘s Deficient Representation was Prejudicial.
The motion to withdraw centered on the claim that if O‘Hearn did not specifically intend his statement to be understood as a threat, he would not be guilty. Indeed,
O‘Hearn‘s motion to withdraw his plea also contended that competent counsel would have recognized that other elements of the charged offense were arguably unsupported by sufficient evidence. “A violation of [
In arguing O‘Hearn would not have pleaded guilty to the charge if he had been informed of the possible defenses available to him, and that the charged offense was a strike, so that violating probation might result in a state prison sentence, defense counsel acknowledged that the fact an offense is a strike is a collateral rather than a direct consequence of a plea, and therefore knowledge of the fact is not a prerequisite to a plea being knowing and voluntary. (Citing People v. Gurule (2002) 28 Cal.4th 557, 634, and People v. Reed (1998) 62 Cal.App.4th 593, 598.) However, as the motion correctly pointed out, Selby‘s “failure to inform O‘Hearn that he was pleading guilty to a strike,” which exposed him to an executed sentence of confinement in state prison, the “failure to advise him that he might avoid such a conviction in exchange for a greater term of imprisonment, or for pleas to the dismissed misdemeanors, deprived the defendant of information he needed to make an informed decision.”
O‘Hearn was unquestionably prejudiced by Selby‘s deficient performance. Accordingly, we shall vacate the denial of the motion to withdraw and remand the case to the superior court for trial.
Postscript
Although not essential to our analysis, this case presents an issue sufficiently significant to warrant comment.
O‘Hearn‘s mental disorder and past conduct strongly suggest that, had he not sought to withdraw his plea, his psychosis and delusions would almost certainly have led him to violate a condition of probation, as happened in the wake of most of his numerous past grants of probation—but this time a probation violation would probably land him in state prison. The commitment of a mentally ill defendant to state prison is an all too common event in the United States, as shown by evidence that there are 10 times more mentally ill persons in prison or jail in this nation than there are in all of our mental hospitals.10
According to the California Department of Corrections and Rehabilitation (CDCR), 32 percent of California‘s prison population in 2016 consisted of inmates who were mentally ill.11 And since the CDCR estimate only includes inmates who have actually received treatment for a “severe mental disorder,” the percentage of mentally ill prisoners is almost certainly greater, though even
These appalling circumstances are tragic not only for mentally disordered offenders, but as well for our society, to which most of the offenders will at some point be released. Our criminal justice system should not countenance this state of affairs.
Nine years ago, the United States Supreme Court found that mentally ill inmates of California prisons received constitutionally inadequate care. (Brown v. Plata (2011) 563 U.S. 493.) Seven years ago, the three-judge federal court that issued the ruling upheld by the Supreme Court in Plata refused to vacate the ruling until the state provides a “durable solution” to the overcrowding that caused the constitutionally inadequate care of mentally disordered prisoners. (Coleman v. Brown (E.D.Cal. 2013) 922 F.Supp.2d 1004, 1045.) Because the state has not produced such a solution, the Plata/Coleman litigation continues to this day.
The California Legislature has begun to address the problems resulting from the large and growing number of mentally ill persons imprisoned in this state. In 2018, the Governor signed Assembly Bill No. 1810, now embodied in
The problem identified by the United States Supreme Court in Plata and addressed by the Legislature in 2018, was undoubtedly the result of inadequate attention to the mental disorders of many accused persons and defendants during the charging and sentencing processes. This case is a perfect example. Selby was not the only person who showed little or no interest in O‘Hearn‘s apparent mental disorders. So too did the district attorney,14 the sentencing judge, Casper, the attorney appointed by the court to investigate whether O‘Hearn had viable grounds to move to withdraw his plea, even though the disorders were suggested by the nature of O‘Hearn‘s unusual criminal history and described by the probation department in the presentence report. So far as the record shows, neither the probation department, the district attorney, nor the court, questioned the wisdom and efficacy of a sentence including probation conditions O‘Hearn was almost certain to violate, which would likely result in his imprisonment—a result sought to be avoided by the United States Supreme Court and the California Legislature.
Nor, so far as the record shows, did anyone ever consider whether it might be appropriate to grant O‘Hearn pretrial diversion pursuant to
Pretrial diversion of mentally ill offenders will not always be appropriate; but the plight of our prisons, the needs of mentally ill prisoners, and the expectations of our Legislature demand that it receive more serious consideration by defense counsel, prosecutors, probation departments, and sentencing courts than it did in this case.
The judgment is reversed and the matter is remanded to the Marin County Superior Court with directions to conduct a trial.
Kline, P.J.
We concur:
Richman, J.
Miller, J.
People v. O‘Hearn (A158676)
Trial Court: Marin County Superior Court
Trial Judge: Hon. Paul M. Haakenson
Attorney for Appellant: By Appointment of the Court of Appeal Under the First District Appellate Project Donald L. Lipmanson
Attorneys for Respondent: Attorney General of California Xavier Becerra
Lance E. Winters Chief Assistant Attorney General
Jeffrey M. Laurence Senior Assistant Attorney General
Catherine A. Rivlin Supervising Deputy Attorney General
Rene A. Chacon Supervising Deputy Attorney General