Opinion
D059716
01-31-2012
In re CLEVELAND R. LOWMAN on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. HC 17764)
THE COURT:
Petition for writ of habeas corpus following conviction and sentencing under the three strikes law. Relief denied.
INTRODUCTION
Cleveland R. Lowman petitions for habeas relief, contending his trial counsel provided ineffective assistance by advising him to admit two prior out-of-state convictions qualified as strikes under California's three strikes law without adequately investigating whether they actually did. He additionally contends his appellate counsel provided ineffective assistance by failing to raise the issue in a prior habeas petition. We conclude Lowman's contentions are procedurally barred. We further conclude Lowman has not met his burden of establishing his counsel performed deficiently, or that any deficiency prejudiced the results of the prior trial court and habeas proceedings. We, therefore, deny habeas relief.
BACKGROUND
Guilty Plea and Appeal
Lowman pleaded guilty to driving under the influence of alcohol or drugs causing injury (Veh. Code, § 23153, subd. (a); count 1); hit and run causing injury (Veh. Code, § 20001, subd. (a); count 2); false imprisonment by violence, menace, fraud, or deceit (Pen. Code, §§ 236, 237, subd. (a); count 3); and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a); count 4). As to count 1, he additionally admitted allegations that in the course of committing the offense he personally inflicted great bodily injury on another person who was not an accomplice (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). He also admitted having two prior prison convictions (§ 667.5, subd. (b)), three prior serious felony convictions (§§ 667, subd. (a)(1), 668) and three prior strike convictions (§§ 667, subd. (b)-(i), 668, 1170.12). The trial court sentenced him to an aggregate term of 43 years to life in prison under the three strikes law.
Further statutory references are o the Penal Code unless otherwise stated.
At the prosecutor's request, the trial court dismissed a fifth count of attempted unlawful taking and driving a vehicle (§ 664; Veh. Code, § 10851, subd. (a)).
Lowman pleaded guilty just before his jury trial was to commence. That same day, presumably in anticipation of the jury trial, the prosecutor filed a trial brief listing Lowman's prior strike convictions, which included a 1985 New York third degree robbery conviction and a 1985 New York attempted second degree robbery conviction.The brief described the conduct underlying the New York third degree robbery conviction as "[d]efendant took a wallet from a person." The brief described the conduct underlying the New York second degree robbery conviction as "[a]cting with two others, Defendant took jewelry from a person. One accomplice had a gun."
The other prior strike conviction, which Lowman is not challenging in this petition, was a 1992 California robbery conviction.
Lowman appealed and requested a certificate of probable cause, asserting the trial court erred in sentencing him to 43 years to life because his trial counsel told him after discussing the matter with the trial judge, that he would be getting a sentence of between 16 to 24 years. The trial court denied the certificate of probable cause. Consequently, we notified the parties that Lowman's appeal was "limited to the denial of a suppression motion (Pen. Code sec. 1538.5), if any, and sentencing or other matters occurring after the plea." (§ 1237.5.)
In his appellate brief, Lowman claimed the trial court violated section 654 by imposing a sentence for both his driving-under-the-influence-causing-injury conviction and his hit-and-run conviction. We rejected this contention and affirmed the judgment. (People v. Lowman (Sept. 26, 2001, D036769) [nonpub. opn.].)
We take judicial notice of the record on appeal as well as the records submitted with the previous habeas petitions Lowman filed in this court. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
First Habeas Petition
In a companion petition for writ of habeas corpus (first habeas petition), Lowman sought to withdraw his guilty plea, contending his trial counsel provided ineffective assistance by misrepresenting to him he would receive a sentence of between 16 to 24 years in prison if he pleaded guilty. We denied the petition without prejudice because it failed to state a prima facie case for relief. We further indicated Lowman could file another petition in the trial court if he could "state with particularity what the trial court told [trial] counsel leading to [trial] counsel's interpretation that the court would impose a sentence between 16 and 24 years . . . ." (In re Lowman (Sept. 26, 2001, D037523).)
Second Habeas Petition
Three years later, Lowman filed another petition for writ of habeas corpus in this court (second habeas petition). Among the issues raised in the second habeas petition, Lowman once again claimed his trial counsel provided ineffective assistance by misrepresenting to him he would receive a sentence of between 16 and 24 years if he pleaded guilty. He additionally claimed the prosecutor failed to prove his New York convictions qualified as strikes under California law, and failed to fulfill his constitutional obligation to produce exculpatory evidence showing his New York convictions did not, in fact, qualify as strikes. He also claimed his trial counsel provided ineffective assistance by failing to investigate whether his New York convictions qualified as strikes and by advising him to admit his New York convictions were prior strike convictions when the prosecution could not prove they were.
We issued an order to show cause and appointed Lowman's former appellate counsel as his habeas counsel (appellate counsel). We further authorized appellate counsel to submit an amended petition and additional supporting documents on his behalf. Appellate counsel submitted a supplemental letter brief, which we deemed to be a supplemental petition, addressing whether Lowman's trial counsel provided ineffective assistance by misrepresenting to him he would receive a sentence of between 16 and 24 years if he pleaded guilty.
Appellate counsel neither directly pursued nor completely ignored Lowman's claims about the impropriety of using his New York convictions as strikes. Rather, appellate counsel referenced these claims as support for Lowman's contention he would not have pleaded guilty and given up his trial rights but for trial counsel's assurance he would receive a sentence between 16 and 24 years.
We subsequently referred the matter to a referee for an evidentiary hearing on two main questions: (1) whether the trial court indicated it would impose a determinate sentence of between 16 to 24 years if Lowman pleaded guilty and, if not, (2) whether trial counsel misadvised Lowman he would receive such a sentence if he pleaded guilty? After conducting the evidentiary hearing the referee found the trial court did not indicate it would impose a sentence of between 16 and 24 years if Lowman pleaded guilty. The referee further found there was insufficient evidence to establish trial counsel misadvised Lowman he would receive such a sentence if he pleaded guilty.
Lowman and appellate counsel both filed objections to the referee's findings. Lowman's objections included the argument that his New York convictions did not qualify as strikes under California law.
We concluded substantial evidence supported the referee's findings and based on the findings, we denied habeas relief on Lowman's claim that his trial counsel provided ineffective assistance by misrepresenting to him he would receive a sentence of between 16 and 24 years if he pleaded guilty. (In re Lowman (Sept. 27, 2005, D045032) [nonpub. opn.].) We also denied habeas relief on the other claims raised in Lowman's petition, including the claims related to his assertion his New York convictions did not qualify as strikes under California law, as we concluded the claims lacked merit. We explained, "[e]ven if these claims are properly before us, which is not clear [citation], the claims are not presented with sufficient particularity to warrant relief [citation]. Nor does Lowman explain why these claims were not brought in his earlier petitions [citation], or if they were, why we should now rule differently on them." (In re Lowman, supra, D045032, at p. 11, fn. 8.)
Current Habeas Petition
Almost six years later, Lowman filed the current habeas petition, again claiming his trial counsel provided ineffective assistance by failing to adequately investigate and discover his New York convictions did not qualify as strikes under California law. He additionally claims his appellate counsel provided ineffective assistance by failing to investigate and challenge the use of his New York convictions as strikes.
When we received the current petition, we requested through the court clerk that the People submit an informal response addressing, in addition to any other issues raised by the petition, whether Lowman's New York convictions qualified as strikes under California law. We also requested more specifically that the response address whether New York's robbery statute requires a taking from the victim's person or immediate presence as California's robbery statute does.
The People's informal response did not address either question. Rather, the People asserted we should deny the petition because: (1) Lowman admitted his New York convictions were strikes; (2) the trial court denied him a certificate of probable cause and he cannot circumvent the denial of certificate of probable cause with a habeas petition; (3) the petition is procedurally barred; and (4) the petition is barred by the doctrine of laches.
After receiving and reviewing an informal reply from Lowman, we issued an order to show cause (OSC) to consider the matter further. In the OSC, we did not request further briefing from the parties. Instead, we indicated that absent an objection by a specific date, the informal response and informal reply "will be deemed the return and traverse to the [OSC]." This is what ultimately occurred.
The dissent faults the People's failure to address the questions we posed in our request for an informal response, suggesting our questions obligated the People to attempt to show Lowman's New York convictions were valid strikes. While we expect and greatly appreciate direct responses to the questions we pose, we are also mindful we cannot through our questioning shift an evidentiary burden from one party to another. In this proceeding, it is Lowman who has the burden of proving his New York convictions are not strikes, not the People who have the burden of proving they are. (In re Martinez (2009) 46 Cal.4th 945, 955-956 (Martinez).)
DISCUSSION
I
Procedural Bars
Preliminarily, we agree with the People that Lowman's petition is procedurally barred "A petition for writ of habeas corpus initiates judicial proceedings to determine the lawfulness of the petitioner's confinement. [Citation.] Because such a petition 'seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them.' [Citation.] At the pleading stage, the petition must state a prima facie case for relief. To that end, the petition 'should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.' [Citations.] [¶] Next, the petitioner must avoid any procedural bar that would prevent the court from reaching the merits of the claim. [Citations.] 'Such rules are necessary both to deter use of the writ to unjustifiably delay implementation of the law, and to avoid the need to set aside final judgments of conviction when retrial would be difficult or impossible.' " (Martinez,supra, 46 Cal.4th at pp. 955-956.)
Among the procedural bars precluding consideration of the merits of a habeas petition are successiveness, repetitiveness, and untimeliness. (Martinez, supra, at p. 950 & fn. 1; In re Clark (1993) 5 Cal.4th 750, 767-768, 774, 786-787.) Each of these bars applies in this case.
The People also contend Lowman may not assert his ineffective assistance of trial counsel claim in a habeas petition because the claim effectively challenges the validity of his plea and he did not first obtain a certificate of probable cause. (§ 1237.5.) The People rely upon In re Chavez (2003) 30 Cal.4th 643 (Chavez), in which the California Supreme Court stated, without discussion, that a defendant challenging the validity of a guilty plea "on the ground that trial counsel rendered ineffective assistance in advice regarding the plea may not circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus." (Chavez, supra, at p. 651.) The Supreme Court relied upon In re Brown (1973) 9 Cal.3d 679, 682-683 (Brown), disapproved and superseded by rule on other grounds as recognized in People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098 and fn. 7, 1103-1104, and People v. Ribero (1971) 4 Cal.3d 55, 63 (Ribero). In our view, language in Brown and Ribero, as well as in People v. Johnson (2009) 47 Cal.4th 668, 684, raises a question about whether the rule stated in Chavez applies to all ineffective assistance of trial counsel claims, or only to those that could have been raised on appeal because the relevant facts appear in the appellate record. (Compare People v. Cotton (1991) 230 Cal.App.3d 1072, 1083 with People v. Guzman (1991) 226 Cal.App.3d 1060, 1066.) The parties did not brief this precise question and we need not decide it since we conclude Lowman's claims are barred on other grounds.
A
Successiveness and Repetitiveness
"It has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected. [Citations.] The court has also refused to consider newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment. [Citations.] . . . 'In this state a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him.' " (In re Clark, supra, 5 Cal.4th at pp. 767-768; accord, Martinez, supra, 46 Cal.4th at pp. 950 & fn. 1, 956.)
In this case, Lowman's claim that his trial counsel provided ineffective assistance by failing to adequately investigate and discover his New York convictions did not qualify as strikes under California law is barred as repetitive because he previously raised this claim in his second habeas petition and we concluded it lacked merit. (In re Lowman, supra, D045032, fn. 8.) This claim is also barred as successive because Lowman could have raised it in his first habeas petition but did not.
B
Untimeliness/Laches
The People separately contend Lowman's petition is barred under the doctrine of laches and because it is untimely. We treat these contentions as one because both bars involve essentially the same considerations. (In re Clark, supra, 5 Cal.4th at pp. 786-787; In re Douglas (2011) 200 Cal.App.4th 236, 246.)
For issues that cannot be raised on appeal because they are based on matters outside the appellate record, "the habeas corpus petition must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim." (In re Harris (1993) 5 Cal.4th 813, 828, fn. 7.) To avoid having a habeas petition procedurally barred as untimely, a petitioner must demonstrate the absence of substantial delay, good cause for the delay, or that the claims raised in the petition fall within an exception to the untimeliness bar. (In re Robbins (1998) 18 Cal.4th 770, 780; In re Douglas, supra, 200 Cal.App.4th at pp. 242-243.) "Like the rule barring piecemeal presentation of claims, the requirement that a petitioner explain and justify delayed presentation of habeas corpus claims reflects recognition that a substantial delay will prejudice the respondent's ability to answer the petition, respects the importance of finality of judgments to the state, and recognizes the difficulty of retrial in the event that a judgment is set aside on habeas corpus many years after the conviction." (In re Clark, supra, 5 Cal.4th at pp. 786-787.)
Here, Lowman asserts he informed his trial counsel before his guilty plea that his New York convictions did not qualify as strikes under California law. Consequently, he knew or should have known of any ineffective assistance of trial counsel claim related to these convictions at the time he filed his first habeas petition. Not only did he fail to present this claim in his first habeas petition, but he also waited three years after we denied his first habeas petition to raise the claim in his second habeas petition. Then, he waited an additional six years after we denied his second habeas petition to raise the claim again in his current petition. Thus, there is no question the claim is substantially delayed. (See, e.g., People v. Jackson (1973) 10 Cal.3d 265, 268-269 [an 11-year delay in presenting ineffective assistance of counsel on habeas claim unjustified when it was based on circumstances known to the defendant at the time of trial and petitioner had filed earlier petitions]; accord, In re Clark, supra, 5 Cal.4th at p. 786.)
C
Exceptions to Successiveness and Untimeliness Bars
Nonetheless, the procedural bars for successiveness and untimeliness are subject to some exceptions. "For example, 'where the factual basis for a claim was unknown to the petitioner and he had no reason to believe that the claim might be made, or where the petitioner was unable to present his claim, the court will continue to consider the merits of the claim if asserted as promptly as reasonably possible.' " (Martinez, supra, 46 Cal.4th at p. 956.) In addition, we will consider the merits of a claim in a successive or untimely petition if the petition alleges facts that, " 'if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction and/or sentence.' " (Ibid.)
" '[A] "fundamental miscarriage of justice" will have occurred in any proceeding in which it can be demonstrated: (1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which the petitioner was convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death; (4) that the petitioner was convicted or sentenced under an invalid statute.' " (Martinez, supra, 46 Cal.4th at pp. 956-957.)
In this case, Lowman did not attempt to bring himself within any of the above exceptions. (Martinez, supra, 46 Cal.4th at p. 967.) Rather, he contends his claims are timely because the court may review challenges to the length of a sentence at anytime.
Notwithstanding this, the dissent asserts we should reach the merits of the petition because Lowman has set forth facts that, if proven, would establish the existence of a miscarriage of justice (i.e, his trial counsel provided him with ineffective assistance and the length of his sentence was illegal). For the reasons stated below, we disagree.
We agree the above procedural bars do not preclude us from reviewing a claim "of sentencing error amounting to an excess of jurisdiction. An appellate court may 'correct a sentence that is not authorized by law whenever the error comes to the attention of the court.' " (In re Harris, supra, 5 Cal.4th at p. 842; People v. Scott (1994) 9 Cal.4th 331, 354.).) However, this exception to the procedural bars does not apply in this case for two reasons.
First, Lowman's sentence was not unauthorized. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott, supra, 9 Cal.4th at p. 354; People v. Smith (2001) 24 Cal.4th 849, 852.) Lowman admitted the prior strike conviction allegations after the trial court informed him of and he waived his right to have the prosecutor prove them. By admitting the prior strike conviction allegations, Lowman conceded the prosecutor possessed legally admissible evidence sufficient to prove them beyond a reasonable doubt. (People v. Thurman (2007) 157 Cal.App.4th 36, 43 [guilty plea concedes prosecution has sufficient evidence to prove case against defendant beyond a reasonable doubt]; People v. Turner (1985) 171 Cal.App.3d 116, 125-126 [same], cited with approval in People v. Kelly (2006) 40 Cal.4th 106, 121, fn. 4.) Accordingly, the trial court had the authority to and could lawfully impose an indeterminate sentence under the three strikes law. (See, e.g., People v. Miller (1992) 6 Cal.App.4th 873, 879 [sentence is valid and not subject to revision through a petition for writ of habeas corpus where sentence complied with a statutory mandate].)
Second, Lowman's ineffective assistance of counsel claims do not involve pure questions of law correctable without considering existing factual findings or referring the matter for further factual findings. (People v. Corban (2006) 138 Cal.App.4th 1111, 1117 [an appellate court may address the legality of a sentence on a petition of habeas corpus where there is no material factual dispute]; see also In re Estrada (1965) 63 Cal.2d 740, 750 & Neal v. State of California (1960) 55 Cal.2d 11, 16-17 [writ of habeas corpus properly used to remedy an invalid sentence when the sentence is correctable without the redetermination of any facts].) As we discuss in more detail in part II.B.2, post, to prevail on his ineffective assistance of counsel claims, Lowman has the burden of establishing his New York offenses do not qualify as strikes under California law. (In re Hardy (2007) 41 Cal.4th 977, 1025; In re Fields (1990) 51 Cal.3d 1063, 1071.) Resolution of this issue not only requires consideration of the New York statutes Lowman violated, but also of the conduct underlying his offenses. (People v. Miles (2008) 43 Cal.4th 1074, 1082; People v. Warner (2006) 39 Cal.4th 548, 552-553.) Evidence of the latter is not part of the trial record because Lowman's guilty plea eliminated the need for the prosecutor to present it. Therefore, resolution of this issue necessarily requires further factual findings, which necessarily precludes us from treating the matter as the type of readily correctable sentencing error unaffected by procedural bars.
The dissent suggests we consider Lowman's claim to be an attack on the sufficiency of the evidence to support the prior strike conviction allegations as sufficiency of the evidence issues are generally never waived. We decline to do so because this general rule does not apply when a defendant has pleaded guilty to an offense or admitted the truth of an enhancement allegation. (People v. Thurman, supra, 157 Cal.App.4th at pp. 43-44.) In addition, claims that may be raised by a petition for writ of habeas corpus are "limited to challenges based on newly discovered evidence, claims going to the jurisdiction of the court, and claims of constitutional dimension." (In re Clark, supra, 5 Cal.4th at pp. 766-767.)
II
Ineffectiveness of Trial Counsel
Even if Lowman's claims were not procedurally barred, we conclude he has failed to establish entitlement to habeas relief. The United States Supreme Court first articulated the standards for establishing an ineffective assistance of counsel claim in Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland). The California Supreme Court recently summarized these standards, indicating to prevail on an ineffective assistance of counsel claim, a "petitioner must prove ' "that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (In re Crew (2011) 52 Cal.4th 126, 150; accord, Harrington v. Richter, supra, 131 S.Ct. at p. 787.) When assessing ineffective assistance of counsel claims, " '[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy.(In re Valdez (2010) 49 Cal.4th 715, 729-730.)
The dissent asserts we have unreasonably applied the Strickland standards in this case. Disagreements among fair-minded jurists in situations such as this generally preclude an unreasonableness finding. (Harrington v. Richter (2011) ___ U.S. ___ [131 S.Ct. 770, 786].)
As the United States Supreme Court has recently admonished, " '[s]urmounting Strickland's high bar is never an easy task.' [Citation.] An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve." (Harrington v. Richter, supra, 131 S.Ct. at p. 788.)
A
In this case, Lowman bases his ineffective assistance of trial counsel claim on his trial counsel's testimony at the hearing on his second habeas petition. Specifically, his trial counsel testified, "I looked at the strike priors. And I felt that they could—that under the law at the time, they appeared to be valid, from New York, even though they're classified as different felonies." Counsel later clarified, "I looked up the code sections in New York, made sure that it was for the correct year, and then matched them up to the strikes in California that—the provisions with our Penal Code here. And they seemed to match. So I thought they were valid strikes."
The dissent believes this testimony establishes Lowman's trial counsel performed deficiently. We believe, for the reasons discussed post, the most this testimony establishes is that Lowman's trial counsel made an incorrect conclusion about the statutes' commonality. It does not establish Lowman's trial counsel failed to investigate or incorrectly concluded the conduct underlying Lowman's New York convictions qualified them as strikes. Therefore, it does not establish that Lowman's New York convictions are not strikes or that his trial counsel misadvised him on this point.
The parties do not dispute that Lowman's trial counsel was obliged to investigate whether his New York convictions qualified as strikes under California law. "Whenever a sentence is enhanced or probation is revoked due to a prior conviction, it is counsel's obligation to examine the validity of the prior or underlying conviction. 'Counsel's first duty is to investigate the facts of his client's case and to research the law applicable to those facts.' " (People v. Cotton, supra, 230 Cal.App.3d at p. 1084.)
Further, the record from the second habeas proceeding indicates Lowman's trial counsel at least attempted to fulfill her obligation. Nonetheless, the focus of the second habeas proceeding was not on ascertaining the extent of his trial counsel's investigative efforts. The focus was on ascertaining whether the trial court or his trial counsel assured Lowman of a sentence between 16 and 24 years if he pleaded guilty. Consequently, very few questions asked of his trial counsel pertained to her investigative efforts.
Of particular note, no one asked Lowman's trial counsel about the discovery she received from the prosecutor relating to the New York convictions and how the discovery may have influenced her investigative efforts. Lowman states in his current petition that the only evidence of the New York convictions are two certificates of disposition showing the convictions occurred and a printout of his criminal history listing the specific statutes he violated, their felony classifications, and his sentences. However, this statement is not supported by a declaration from his trial counsel indicating this was all the information available to her when she advised Lowman to admit the prior strike conviction allegations. This statement is also not supported by a declaration from Lowman's current habeas counsel indicating his efforts to ascertain what information Lowman's trial counsel had available to her.
The record shows Lowman's trial counsel has consistently cooperated with Lowman's efforts to obtain postconviction relief. Thus, we have no basis to infer, much less conclude, she would not have provided such a declaration if asked for one.
The absence of support for the statement is concerning because the prosecutor's trial brief, which was filed the same day Lowman pleaded guilty, describes the conduct underlying the New York convictions. As explained in more detail in part II.B.2., post, if these descriptions are accurate, they undermine Lowman's ineffective assistance of counsel claims because the described conduct amounts to a serious felony under California law. Since the certificates of disposition and the criminal history printout do not describe the underlying conduct, the prosecutor would not have been able to describe the underlying conduct in his trial brief unless other information describing the conduct existed. Because the prosecutor would have been obliged to provide such information to Lowman's trial counsel (§§ 1054.1, 1054.7), we cannot accept Lowman's unsupported statement that there was no other evidence bearing on his trial counsel's investigation or advice. We, therefore, cannot conclude his trial counsel's investigation or advice regarding the New York prior convictions was professionally unreasonable.
B
Even if Lowman had established his trial counsel's investigation or advice regarding the New York prior convictions was constitutionally deficient, Lowman has not established the alleged deficiency prejudiced him. (In re Crew, supra, 52 Cal.4th at p. 150 [a court need not decide whether counsel's performance was deficient when it can determine a claim of ineffective assistance of counsel on the ground of lack of prejudice].) To establish prejudice, Lowman must show that, but for his trial counsel's failings, there is a reasonable probability the trial result would have been more favorable for him. (Ibid.) More precisely, Lowman must show that further investigation by his trial counsel would have revealed his New York convictions did not qualify as strikes under California law. (In re Hardy, supra, 41 Cal.4th at p. 1025; In re Fields, supra, 51 Cal.3d at p. 1071.) Lowman has not done this.
1
"For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law [citations], the foreign crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' [citations], and (2) must 'include[] all of the elements of the particular felony as defined in' section 1192.7 [subdivision] (c)." (People v. Warner, supra, 39 Cal.4th at pp. 552-553.) Lowman's New York convictions were for robbery and attempted robbery. Robbery and attempted robbery are among the prior felonies that may subject an offender to a three strikes sentence. (§§ 667, subd. (d)(1), 1170.12 subd. (b)(1), 1192.7, subd. (c)(19) & (39).)
Thus, contrary to Lowman's assertion, New York's view of the seriousness of his convictions is irrelevant to whether the convictions qualify as strikes under California law.
In California, robbery involves the "taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211; People v. Clark (2011) 52 Cal.4th 856, 943.) "The crime is essentially a theft with two aggravating factors, that is, a taking (1) from victim's person or immediate presence, and (2) accomplished by the use of force or fear." (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.)
In New York, "a robbery occurs when a person forcibly steals property by the use of, or the threatened use of, immediate physical force upon another person for the purpose of compelling that person to deliver up property or to prevent or overcome resistance to the taking." (People v. Miller (N.Y. 1995) 87 N.Y.2d 211, 214 .) Like robbery in California, robbery in New York involves a theft accomplished by the use of force or fear. Unlike robbery in California, however, robbery in New York does not require that "the defendant take the property ' from the person or in the presence of another.' " (See Practice Commentary, McKinney's Consolidated Laws of N.Y. Ann. (2010) Penal Law, § 160.00.) Consequently, as Lowman contends, the New York robbery statutes under which he was convicted could encompass conduct that would be not be considered robbery in California.
2
We do not end our inquiry there though because a trial court may look behind the statutory elements of the prior crime and consider the entire record of conviction to determine whether a defendant's actual conduct constitutes a strike under California law. (People v. Miles, supra, 43 Cal.4th at p. 1082; People v. Riel (2000) 22 Cal.4th 1153, 1204-1205.) Therefore, for Lowman to meet his burden of establishing prejudice, he cannot rely solely on the statutory discrepancy. He must also plead and prove the actual conduct underlying his New York convictions would not have amounted to a robbery or attempted robbery under California law (i.e., did not involve a forcible taking from the victim's person or immediate presence). (In re Fields, supra, 51 Cal.3d at p. 1071 ["In a habeas corpus petition alleging incompetent investigation or presentation of evidence by trial counsel, a petitioner generally cannot expect to establish a case for relief solely by relying on testimony, expert or otherwise, describing what evidence might have been discovered and produced by competent counsel. Instead, he must generally produce that evidence so the credibility of the witnesses can be tested by cross-examination. . . . In effect, the petitioner must show us what the trial would have been like, had he been competently represented, so we can compare that with the trial that actually occurred and determine whether it is reasonably probable that the result would have been different."]; accord, In re Hardy, supra, 41 Cal.4th at p. 1025.)
Lowman has not met his burden. Not only has he not alleged the conduct underlying his New York conviction fails to qualify them as strikes, but neither he nor his current counsel submitted declarations detailing what efforts, if any, they undertook to obtain and present the entire records of his New York convictions. He also did not submit a declaration giving his own account of the underlying conduct. These omissions are crucial because the record in this case strongly suggests Lowman cannot, in fact, plead and prove the underlying conduct would not have amounted to a robbery or attempted robbery under California law.
According to the prosecutor's trial brief, Lowman's July 1985 New York third degree robbery conviction involved him taking a wallet from a person. His January 1985 New York attempted second degree robbery offense involved him and two accomplices, one of whom was armed, taking jewelry from a person. If these descriptions are accurate, the offenses involved the forcible theft of property from the victim's person or immediate presence. They, therefore, would have amounted to robbery or attempted robbery and qualified as strikes under California law. Consequently, these omissions compel us to conclude Lowman has not established he suffered any prejudice from the alleged deficiencies in his trial counsel's performance.
The dissent asserts we should refer the matter for an evidentiary hearing. However, we may deny relief without an evidentiary hearing where, as here, the parties' briefing and the record persuades us the contentions advanced in the petition lack merit. (People v. Romero (1994) 8 Cal.4th 728, 739.) In addition, because Lowman did not meet his obligation of including copies of reasonably available supporting evidence with his petition and the People relied on procedural bars to support their position, there is not actually a material factual dispute between the parties necessitating a reference. (Id. at pp. 739-740). Under the circumstances, we do not believe referring the matter for an evidentiary hearing would be an appropriate use of scarce judicial resources.
III
Ineffectiveness of Appellate Counsel
As previously stated, Lowman's appellate counsel represented him in the first and second habeas proceedings. Lowman contends appellate counsel provided ineffective assistance by failing to investigate and challenge whether his New York offenses qualified as strikes under California law. To support his claim, he points to his testimony at the hearing on his second habeas petition, which he contends put his appellate counsel on notice the New York convictions were not strikes under California law. Assuming Lowman's testimony gave rise to a professional obligation on appellate counsel's part, at that time appellate counsel was functioning solely as habeas counsel. There is no constitutional right to the effective assistance of counsel in a state habeas proceeding. (Coleman v. Thompson (1991) 501 U.S. 722, 756-757; People v. Boyer (2006) 38 Cal.4th 412, 489.) Consequently, we conclude there is no merit to Lowman's ineffective assistance of appellate counsel claim.
Specifically, he testified that when he retained his trial counsel, he "explained to her step-by-step what [I] was facing, [my] New York City priors. And [he] told her that [I] didn't believe that [my] New York City priors were serious or violent at that time." He also testified he thought "my priors from New York, according to the New York City law, they are no good. They cannot be used for a strike hearing. [¶] And when I expressed that to her, we both wanted to show at that time—because I couldn't get ahold [sic] of any New York City lawyer then."
Regardless of when appellate counsel may have learned of Lowman's claim that his trial counsel inadequately investigated his New York convictions, appellate counsel could only have raised the claim in a habeas petition because the claim necessarily involves matters outside the appellate record.
A petitioner may assert a former habeas counsel's deficient performance precludes us from finding that a subsequent habeas petition is procedurally barred. (People v. Kipp (2001) 26 Cal.4th 1100, 1140; In re Clark, supra, 5 Cal.4th at p. 780.) To do so, however, the petitioner must "allege with specificity the facts underlying the claim that the inadequate presentation of an issue or omission of any issue reflects incompetence of counsel, i.e., that the issue is one which would have entitled the petitioner to relief had it been raised and adequately presented in the initial petition, and that counsel's failure to do so reflects a standard of representation falling below that to be expected from an attorney engaged in the representation of criminal defendants." (In re Clark, at p. 780.) Lowman has not attempted to avoid a procedural bar based on appellate counsel's allegedly inadequate performance as habeas counsel. Even if he had made such attempt, it would fail because, for the reasons stated in part II, ante, he has not established he would have been entitled to relief if appellate counsel had previously raised the ineffective assistance of trial counsel claim he raises in this petition.
DISPOSITION
Relief denied.
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McCONNELL, P. J.
I CONCUR:
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IRION, J.
J. HUFFMAN, dissenting.
Cleveland Lowman is serving a 25-year-to-life sentence for felony drunk driving based on his admission of two 1985 New York prior convictions, which the majority concedes do not qualify as serious felonies in California based upon their least adjudicated elements. Lowman admitted the alleged "strike priors" in a plea agreement based on the inadequate advice of an inexperienced retained attorney who did not properly investigate the question of whether the New York convictions qualified as "strikes" in California.
The majority reaches, what is in my view, an unjust result based upon two basic theories. First, the majority concludes Lowman is procedurally barred from habeas relief, although it recognizes we are not precluded from intervening when there is a manifest injustice. (In re Martinez (2009) 46 Cal.4th 945, 967.)
The second theory argued by the majority is that Lowman has not carried his burden to prove trial counsel provided constitutionally inadequate representation. (Strickland v. Washington (1984) 466 U.S. 668.) Lowman had presented evidence that trial counsel only reviewed the New York statutes, specifically to determine the dates of the applicable statutes. Counsel did not discover, what the majority now concedes; that is, the New York offenses, as defined, do not by their elements, qualify as strikes. So at least Lowman had demonstrated substantial legal error by trial counsel.
However, the majority avoids the obvious consequences of the conclusion trial counsel's legal analysis was dead wrong. The majority concludes the government might have been able to show the manner of committing the crimes nonetheless qualify them as California strikes. (See People v. Warner (2006) 39 Cal.4th 548, 552-553 (Warner).)
The majority reaches this conclusion by speculating that the prosecution might have been able to prove qualifying conduct. It relies on the terse statement in the prosecution's trial brief, submitted to address a different issue that states:
"1985 - Robbery 3rd Degree - Prison (New York) Felony, STRIKE: Defendant took a wallet from a person.
"1985 - Attempt Robbery 2nd Degree - Prison (New York) Felony, STRIKE: Acting with two others, Defendant took jewelry from a person. One accomplice had a gun."
Further, the majority speculates counsel might have had discovery that might have included proof of the manner of commission of the New York crimes. I respectfully disagree.
First, the record includes only the New York certifications of conviction. Neither document reflects the manner of commission of the offense.
Second, in order to avoid the facial invalidity of the "strike priors" and bring them within the rule in Warner, supra, 39 Cal.4th 548, the prosecution would have to show through the record of conviction that these priors qualified as strikes. (People v. Miles (2008) 43 Cal.4th 1074, 1082.) The record of conviction does not include police reports or probation reports, but must be gleaned from those documents which are part of the conviction itself. The majority reasons that since Lowman admitted the priors, the prosecution never had to present its proof. While that is certainly an accurate statement, in this case it begs the question. The record we have before us establishes inexperienced counsel did not look beyond the language of the New York statutes. Counsel was so driven by her belief the trial court would strike some or all of the priors, that she did nothing regarding the strike priors other than review statutes and reach a legally incorrect conclusion.
It is interesting to note that Lowman's most recent petition for habeas relief based on the same grounds as here was denied in the superior court, also based on the erroneous assumption that the New York priors, on their face, qualified as serious felonies in California. As the majority has correctly determined, the superior court made the same mistake of reasoning as did the trial counsel for Lowman.
Undoubtedly, Lowman must show prejudice as a result of counsel's erroneous advice. The majority guesses that the prosecution might have been able to meet its burden with admissible evidence. Perhaps there may be something, yet undisclosed, that would establish the validity of the strikes in this case. If so, the prosecution has never presented it in these habeas proceedings. We specifically asked the Attorney General in this proceeding to address the question of whether the New York priors qualified as strikes. Instead of complying with that request, the Attorney General advanced a theory, properly rejected by the majority, that relief was barred by the failure of Lowman to obtain a certificate of probable cause (Pen. Code, § 1237.5). As the majority correctly notes that contention lacks merit.
The only other theory advanced by the Attorney General is also a procedural bar. Thus, even in the face of a request from this court, the prosecution has never even attempted to show these priors are valid.
Given the Attorney General's latest response and the majority's reliance on procedural bars, I will address that issue before ending this dissent.
After his 2004 petition failed, Lowman again sought habeas relief in San Diego Superior Court, but it was denied in May 2011. Lowman filed this original habeas proceeding in May 2011, asserting that the length of his sentence was illegal and his claim can presently be reviewed by this court under authorities such as People v. Smith (2001) 24 Cal.4th 849, 853 (asserted sentencing errors may be exempt from the waiver rule where the claim presents a pure question of law). He therefore relies on exceptions to the rule against successive petitions, such as where "the factual basis for a claim was unknown to the petitioner and he had no reason to believe that the claim might be made, or where the petitioner was unable to present his claim." (In re Clark, supra, 5 Cal.4th 750, 797.) If the defendant asserts the claim "as promptly as reasonably possible," it may be cognizable. (Id. at p. 775.)
In particular, Lowman asserts he has set forth "facts which, if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction and/or sentence" (In re Clark, supra, 5 Cal.4th at p. 797), and thus, this court can and should reach the merits of the petition. (Id. at pp. 767-768; In re Martinez, supra, 46 Cal.4th at pp. 956-957.) Ineffective assistance of counsel at sentencing is one such circumstance that may give rise to a " 'fundamental miscarriage of justice,' " if "error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner . . . ." (See In re Clark, supra, at pp. 763-769, 797-798; In re Martinez, supra, at pp. 956-957.)
In this sentencing context, allegations that Lowman's trial counsel was ineffective for not adequately investigating, as a matter of fact or law, whether the New York robberies constituted serious or violent felonies, and/or for advising him to admit that they were tantamount to assertions of such fundamentally unfair proceedings. Although Lowman further contends that prior appellate counsel was also ineffective for not investigating and raising this issue on appeal, that issue need not be addressed on the current record. Accordingly, all pertinent legal issues are presented with sufficient particularity to warrant relief. (See People v. Karis (1988) 46 Cal.3d 612, 656.)
Alternatively, Lowman has arguably attacked the sufficiency of the evidence in support of the strike priors or enhancements. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) "Generally 'issues of sufficiency of the evidence are never waived.' " (Id., citing People v. Neal (1993) 19 Cal.App.4th 1114, 1122.) An appellate court retains jurisdiction to address challenges to the length of a sentence whenever they come to the court's attention; such errors are always reviewable despite the passage of time and " 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' [Citation.]" (People v. Smith (2001) 24 Cal.4th 849, 852.)
At the end of any reasonable analysis, the petitioner has shown he was persuaded to admit New York priors as California strikes even though they do not qualify by their elements. He has also shown that inexperienced counsel did nothing to determine the validity of the priors, save for reading the New York statutes, and reaching a legally incorrect conclusion. Lowman relied on that erroneous advice and is now subject to a 25-year-to-life term as a result.
Rather than speculate as to what the government might have been able to prove, but has never shared with the court, the court should issue a reference order and appoint a referee to conduct an evidentiary hearing on the question of alleged ineffective assistance of counsel by trial counsel in inducing her client to admit priors, about which she had clearly done an incompetent job of investigating.
For my part, Lowman has sufficiently demonstrated he relied, to his detriment, on legally erroneous advice from counsel, who failed to do the most basic research on one of the most important components of the things to which Lowman was advised to plead. I submit that the majority has made an unreasonable application of the constitutional standard for ineffective assistance of counsel as set forth in Strickland v. Washington, supra, 466 U.S. 668, and its progeny. In my view, it is manifestly unjust to require Lowman to serve 25 years to life based on incompetent representation by trial counsel. I therefore dissent.
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HUFFMAN, J.