Thursday, August 15, 2013
Failure to Investigate ‘Strike’ Held Ineffective Assistance
C.A. Says Lawyer Could Not Rely on Client’s Understanding as to Prior Offense
By KENNETH OFGANG, Staff Writer
A defense attorney’s failure to fully analyze the documents used by the prosecution to prove a prior conviction in a second-strike case constituted ineffective assistance, the Court of Appeal for this district ruled yesterday.
Div. Seven granted Jamali Brown’s petition for habeas corpus relief from his doubled sentence for vandalism. The decision reduces the aggregate sentence from four years to two years.
Justice Laurie Zelon, writing for the Court of Appeal, rejected the attorney general’s argument that the error of Brown’s trial counsel in failing to discover that the “strike” to which the defendant admitted was actually a prior juvenile adjudication for grand theft—which is not a serious or violent felony and does not come under the Three-Strikes Law—did not constitute deficient performance under prevailing norms.
In seeking post-conviction relief, Brown’s appointed appellate counsel, Linda L. Gordon, said she had reviewed the juvenile case file and that it showed no adjudication for any offense other than grand theft. Being unable to obtain transcripts of the juvenile court hearings, she obtained a settled statement and a concession from the district attorney that the adjudication had been for grand theft and that the only charge that would have been a strike, robbery, was dismissed.
In response to Gordon’s request for a declaration, Brown’s trial counsel—who was not named in the opinion—said in a letter that he had discussed the prior with Brown after the jury returned its verdict and that Brown decided to admit the prior. Counsel said he reviewed the prosecutor’s “juvenile packet,” but did not receive a copy and could not recall the contents because the case was six years old and he had “tried many cases since.”
Brown said in his own declaration that he admitted the strike on advice of counsel, but that at the time he did not understand that he was admitting to a prior adjudication for a crime that he had not been actually found guilty of.
Breach of Duty
Zelon said the trial lawyer breached his duty of adequate investigation. She cited several cases in which inadequate assistance was found based on an attorney’s mistake in advising the client to admit a strike allegation when the offense involved was not actually a strike as a matter of law.
She rejected the argument that it would have been objectively reasonable for counsel to admit the strike based on the information in the new case, and a pre-conviction probation report, each erroneously stating that Brown had a prior conviction for robbery.
“We fail to see how defense counsel could have reasonably relied on either of these documents in concluding that the strike allegation was valid,” the justice wrote. “The information merely contains allegations regarding the nature of Brown’s juvenile adjudication.”
She went on to say that a defense lawyer “has a duty to investigate allegations made against his client, not merely assume their truth,” that counsel could not rely on the probation report because it was hearsay, and that a lawyer cannot rely on a client’s lay understanding as to what crime he was convicted of and whether or not it was a strike.
The case is In re Brown, B245677.
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