Metropolitan News-Enterprise


Wednesday, December 7, 2011


Page 1


C.A.: Ineffective Assistance Warrants Habeas Relief


By a MetNews Staff Writer


The Sixth District Court of Appeal yesterday upheld a Northern California man’s conviction for causing a false insurance claim to be filed, but said he may be entitled to habeas relief due to the ineffective assistance of his attorney.

Defense counsel’s failure to renew a motion to dismiss the charge against David Witcraft after the preliminary hearing demonstrated ineffective assistance since the motion, had it been made, would have been granted, the justices said.

The charge against Witcraft arose from a Feb. 5, 2009 car collision between a his Ford Ranger pickup truck and Mary Jo Greenlee’s Mercedes Benz.

Witcraft provided officers who responded to the scene with vehicle registration information indicating that his truck was owned by Sears and Roebuck Company and an insurance card for a Ford vehicle issued by Esurance.

The day after the collision, Greenlee called Esurance, reported the accident, and made a claim against the policy identified on the insurance card Witcraft had shown her and to the responding officer.

Her husband, a San Jose police officer, later learned that the insurance policy did not cover a vehicle with the license plate number recorded in the accident report. He then spoke to a manager at Sears and was shown a Sears van bearing a license plate with the same number as that recorded in the police report.

The van was missing one license plate and did not have a current registration sticker. Greenlee’s husband said the Sears manager told him Witcraft, a former employee, had been given the van’s registration and the new registration sticker to be put on the license plate.

Two days after this, an Esurance claims representative called Witcraft to secure a recorded statement about the accident. Witcraft told the representative that he had been driving a rented Ford van and promised to provide a copy of the rental contract. When he failed to do so, Esurance denied Greenlee’s claim.

In April 2009, the Santa Clara County District Attorney charged Witcraft with one count of receiving stolen property, providing false identification to a peace officer, presenting a false registration card, and failing to provide proof of automobile insurance.

The second count was later changed to a charge providing false information, and Witcraft plead no contest to the charges, as amended.

Several months later, the District Attorney’s office filed a second complaint against Witcraft, alleging that he had presented a false insurance claim or caused a false claim to be filed, in violation of Penal Code Sec. 550(a)(1).

Last April, before the preliminary hearing, Witcraft filed a motion to dismiss the complaint on the ground that it was barred under Sec. 654, which provides a “conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other.” 

A Santa Clara Superior Court judge denied the motion, and after the preliminary hearing, held Witcraft to answer. Witcraft then entered a no contest plea.

On appeal, Witcraft contended that his trial counsel rendered ineffective assistance by failing to renew the motion to dismiss after the preliminary hearing, an omission that forfeited any claim that the second case was barred by Sec. 654.

In a letter attached to Witcraft’s habeas petition, trial counsel stated that he did not renew the motion to dismiss because he mistakenly believed the initial motion would preserve the claim for appeal.

Writing for the appellate court, Presiding Justice Conrad L. Rushing explained that Witcraft’s claim of ineffective assistance “hinges on whether a renewed motion to dismiss would have been granted.”

If so, Rushing said, “then counsel’s failure to have renewed it after the preliminary hearing would demonstrate ineffective assistance” as such an omission “could not have reflected a reasonable tactical decision” and “its prejudice would be obvious, in that defendant unnecessarily faced a second prosecution.”

The justice noted that the trial court had denied Witcraft’s motion to dismiss on the theory that the two cases against him were based on entirely different conduct: one arising from his conduct immediately after the accident, and the other from his false statements to the Esurance representative.

“Later, however, the court held defendant to answer in the second case on the theory that defendant’s conduct on February 5 caused Mrs. Greenlee to file a false claim,” Rushing said.

“Given this procedural history,” Rushing reasoned “…the prosecutor could not have opposed a renewed motion [to dismiss] on the same ground he asserted before—i.e. that the second case was based exclusively on defendant’s false statements to Esurance.”

He further suggested that the prosecution “knew or should have known that the defendant had caused Mrs. Greenlee to file a claim with Esurance under suspicious circumstances and that Esurance had initially determined that the claim was not covered,” which “provided a substantial basis to suspect and investigate whether, in addition to the other alleged offenses arising from defendant’s course of conduct on February 5, he may also have caused Mrs. Greenlee to file a false claim” at the time the complaint in the first case was filed, “and certainly by the time of the preliminary hearing.”

Under these circumstances, Rushing said, the second complaint filed against Witcraft should have been barred by Sec. 654, and, had defense counsel renewed the motion to dismiss, it would have been granted.

Rushing therefore concluded that “defendant’s claim of ineffective assistance states a prima facie case for relief by writ of habeas corpus,” and, joined by Justices Eugene M. Premo and Franklin D. Elia, ordered the Attorney General to show cause why Witcraft is not entitled to relief on habeas corpus.

The consolidated cases are People v. Witcraft, H036159 and In re Witcraft, H036768.


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